STEWART v STEWART [2021] NZHC 1534

STEWART v STEWART [2021] NZHC 1534 [25 June 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECIV-2020-454-5[2021] NZHC 1534BETWEEN TIMOTHY DAVID STEWARTFirst PlaintiffSIMONE SUSAN STEWARTSecond PlaintiffAND DAVID ALAN STEWARTFirst DefendantJAMES ROBERT STEWARTSecond DefendantJANET DOROTHY STEWARTThird DefendantJOHN NAYLORFourth DefendantDAVID ALAN STEWART,JANET DOROTHY STEWART,JAMES ROBERT STEWART andJOHN NAYLORFifth DefendantsHearing: On the papersAppearances: J Maassen for plaintiffsT Stephens and G Richards for defendantsJudgment: 25 June 2021COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[1] By application dated 26 March 2021 the plaintiffs sought orders requiring thedefendants to provide further discovery.[2] In due course, the application was set down to be heard at 10.00 am onMonday 17 May 2021.[3] Over the weekend of 15 and 16 May 2021 the parties notified the Registry thatthe application would not be proceeding.[4] Now the defendants seek costs in respect of the application. For good measure,they also take the opportunity to seek costs in respect of two interlocutory mattersdealt with during 2020.The plaintiffs' 26 March 2021 application for further discovery[5] The defendants provided discovery in December 2020. In March 2021 theplaintiffs' solicitors or counsel raised a concern about the adequacy of the defendants'discovery. This concern was raised in the context of correspondence between counselin relation to other matters. Before anything was resolved the plaintiffs filed andserved their formal application.[6] In the context of this costs application by the defendants, counsel for bothparties have filed and served an extensive body of material which sets out, andadvances competing arguments in relation to, the sequence of events which ultimatelylead to the abandonment of the application. The most elementary application of theprinciple of proportionality in dealing with interlocutory steps in litigation prohibitsme from analysing this material in any detail. It would, in any event, serve no usefulpurpose to do so.[7] The essential point is that, without having exhausted the possibility ofresolving any issues that may have existed by engaging with the defendants, theplaintiffs made a formal application for further discovery. Having done so, they didnot comply with timetabling directions for the disposal of the same. Ultimately, theyfound themselves in a position of having to abandon their application because ittranspired that, before the Court could sensibly deal with the same, they would needto replead their case.[8] In such circumstances, I am left in no doubt that the defendants are entitled tothe costs order they seek.The plaintiffs' 29 July 2020 application for further discovery and the defendants'23 October 2020 application for particulars[9] Both of these interlocutory matters are now of some vintage. Neither partyobviously though it worth pursuing costs at the time. Quite rightly too, as the timeinvolved would have given rise to costs exceeding the scale.[10] In my view, the proper course is to reserve the costs of these two interlocutoryskirmishes, which will be costs in the cause.Conclusion[11] I make a costs award against the plaintiffs in favour of the defendants inrelation to the plaintiffs' 26 March 2021 application in the sum of $5,019 together withsuch disbursements as may be allowed by the Registrar.[12] I decline to make costs awards in relation to the two other applications referredto in this judgment.Associate Judge JohnstonSolicitors:Wadham Partners, Palmerston North for plaintiffsFitzherbert Rowe, Palmerston North for defendants