KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED HC CHCH CIV-2012-409-2524
Because the proceeding settled without judgment and a discontinuance was to be filed, and the case was not shown to be sufficiently exceptional to justify departing from the ordinary rule, the plaintiffs were not entitled to costs; comparison of claimed amounts and offers alone was insufficient to justify awarding...
Source-derived case information.
- Citation
- openlaw-769034c6_b54d_40a6_9f9a_9ac4e6cce52b.pdf
- Parties
- Plaintiff: Kitt Robert Mayo Littlejohn; Plaintiff: Philip Basil Nicholson; Defendant: Southern Response Earthquake Services Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 13 May 2013
- Procedural Posture
- High Court Civil Proceeding / Post Settlement Costs Application (discontinuance to Be Filed)
- Outcome
- Application for costs declined
- Legal Topics
- Costs on Discontinuance, Court Discretion, Exceptional Circumstances
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitt Robert Mayo Littlejohn
Plaintiff
Philip Basil Nicholson
Plaintiff
Southern Response Earthquake Services Limited
Defendant
Procedural Posture
High Court Civil Proceeding / Post Settlement Costs Application (discontinuance to Be Filed)
Legal Issues
- 1 Whether plaintiffs are entitled to costs following settlement and prior to judgment
- 2 Whether costs should be awarded where the proceeding is to be discontinued
- 3 Whether exceptional circumstances exist to depart from the ordinary rule that costs follow the formal result
Ratio Decidendi
Because the proceeding settled without judgment and a discontinuance was to be filed, and the case was not shown to be sufficiently exceptional to justify departing from the ordinary rule, the plaintiffs were not entitled to costs; comparison of claimed amounts and offers alone was insufficient to justify awarding costs.
Court Disposition
Application for costs declined
Orders
- Application for costs declined
Full Case Text
Judgment text and source record
1 paragraphs
KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED HC CHCH CIV-2012-409-2524 [13 May 2013]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2012-409-2524[2013] NZHC 1072BETWEEN KITT ROBERT MAYO LITTLEJOHN AND PHILIP BASIL NICHOLSON PlaintiffsAND SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED DefendantHearing: (On papers)Counsel: G Shand for Plaintiffs S Waggott for DefendantJudgment: 13 May 2013JUDGMENT OF MILLER J(AS TO COSTS)[1] The plaintiffs have moved for costs on the proceeding. I decline to award them. My reasons follow.[2] The proceeding has settled and a notice of discontinuance is apparently to be filed, although that has not yet happened. Costs are sought on the footing that the plaintiffs won, since the defendant has agreed to pay them a sum of money which they say is not far short of the amount originally claimed and substantially more than the defendant initially offered.[3] Costs are normally awarded for steps in a proceeding, by which I mean formal steps under the rules of the Court. They normally follow the result of the proceeding, which relevantly may be discontinuance or judgment. So a party who has won a judgment normally gets costs, and a plaintiff who discontinues normally must pay costs on the discontinuance. As the matter has settled without judgmentand a discontinuance is to be filed, the plaintiffs would not ordinarily be entitled to costs at all.[4] Costs are always in the Court's discretion, but it will not ordinarily speculate about what would have happened had there been a trial.1 Only in exceptional cases will the Court take a different view: Auckland City Council v Southbourne Holdings Limited HC AK CIV-2010-404-4076, 8 November 2011. I do not think this case is sufficiently exceptional. It is not enough to compare amounts initially claimed against those offered. All of that might have changed by the time of trial. The reasons for any disparity between the claim and the amount paid might also be relevant, as might the defendant's reasons for not paying before action.Miller JSolicitors:Wynn Williams & Co, Christchurch for Defendant1 Ford v First National Real Estate Network Ltd (2006) 18 PRNZ 432.