ALLISON v JJS CARS LIMITED [2013] NZHC 2459

ALLISON v JJS CARS LIMITED [2013] NZHC 2459 [25 September 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-2513[2013] NZHC 2459BETWEEN JENNIFER JANE ALLISONPlaintiffAND JJS CARS LIMITEDDefendantHearing: (on papers)Appearances: J Foley for plaintiffA Kashyap for defendantJudgment: 25 September 2013JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE[on Costs]This judgment was delivered by me on25.09.13 at 4 p.m., pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateCounsel:Foley & Hughes, AucklandA Kashyap, Epsom, Auckland[1] The plaintiff brought liquidation proceedings against JJS Cars Limited torecover amounts that she had paid for a motor vehicle. The price had been satisfiedby means of cash and a trade in vehicle.[2] The plaintiff asserted that the car that she acquired was defective. Thedefendant motor vehicle dealer denied that and further raised the issue that the carthat the plaintiff had traded in was defective.[3] The plaintiff sought an order placing the defendant into liquidation. After ithad received all but $1,000 of the amounts that it claimed, the plaintiff discontinuedthe proceeding. This was done against a background that the parties had agreed thatthe $1,000 amount should be held pending the outcome of a decision of the DisputesTribunal into who was right and who was wrong in the matter of the ConsumerGuarantees Act cause of action which the plaintiff claimed she had against thedefendant.[4] This was a case where the plaintiff did not obtain the type of order that she saidshe was entitled to, being a liquidation order based upon the alleged insolvency ofthe defendant company. She has made something of a victory in the arrangementscollateral to the liquidation proceedings because there has been a partial refund andan agreement to refer the dispute over the unpaid balance to the Disputes Tribunal.[5] The parties did not dispute that r 15.23 of the High Court Rules applied to aliquidation proceeding.[6] The presumption is that unless the Court otherwise orders a plaintiff whodiscontinues must pay costs. That is the prima facie position. It is not possible forthe Court to go into the merits of this case. No rational judgment can be madewhether or not the car that was supplied fell below the standard required by theConsumer Guarantees Act.[7] There is an onus on the plaintiff to satisfy the Court that the usualpresumption of costs in favour of the defendant should not apply.1 According toMcGechan on Procedure the presumption is not displaced merely because theplaintiff acted reasonably in bringing and discontinuing the proceeding. Those arerelevant factors but more is needed to show that a costs award in the defendantsfavour would not be just or equitable. The case of Vector Gas Limited v ToddPetroleum Mining Company Limited2 is cited in support. I consider that is a correctstatement of principle. There is at least one authority where costs were awarded to adiscontinuing plaintiff who had obtained the result that she wanted because ofagreement and subsequently discontinued the proceeding.3[8] However such minor amounts, although important to the parties, were involved in this proceeding that the decision to compromise on each side is just asexplicable in terms of costs avoidance and may be explained on that basis rather thanon the basis of any recognition of merit or compelling strength of either side's case.Because there was a compromise both parties achieved a measure of success, it maybe argued.[9] For all of those reasons I consider that the presumption has not beendisplaced and that the plaintiff ought to pay costs on a 2B basis together withdisbursements as fixed by the Registrar.__________________________ J P DoogueAssociate Judge1 Paul v Raklander HC Auckland CIV 2009-404-3811, 20 June 2008.2 Vector Gas Limited v Todd Petroleum Mining Company Limited HC Wellington CIV-2004-485- 1753, 7 December 2010 at [18].3 Max v Auckland City Council HC Auckland CIV-2006-404-001, 9 June 2006.