BARRY WALTERS AND ANOR V TAYLOR MARINE LIMITED AND ORS HC AK CIV 2006-404-2772

BARRY WALTERS AND ANOR V TAYLOR MARINE LIMITED AND ORS HC AK CIV 2006-404-2772

Where plaintiffs promptly discontinued proceedings against the fourth defendant upon receipt of affidavit evidence undermining their earlier brief, they did not persist with a hopeless case; indemnity costs were refused and the fourth defendant was awarded costs on a 2B basis with adjusted time allowances (1.5 days...

Source-derived case information.

Citation
openlaw-47c74115_36a1_44ca_9993_70bd7c01e798.pdf
Parties
First Plaintiff: Barry Walters; Second Plaintiff: Barrington Charters Limited; First Defendant: Taylor Marine Limited; Second Defendant: Lawrie Abel; Third Defendant: LR Abel & Company Limited; Fourth Defendant: Ken Davidson; Fifth Defendant: John Hayman
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 August 2008
Procedural Posture
Civil: Misrepresentation and Negligence Concerning Sale of a Vessel / Discontinuance Against Fourth Defendant; Costs Hearing Following Interlocutory Application to Strike Out/summary Judgment
Outcome
Plaintiffs ordered to pay fourth defendant's costs on a 2B basis; indemnity costs refused; leave to discontinue the claim against the fourth defendant previously granted.
Legal Topics
Misrepresentation, Deceptive Conduct, Negligence, Encumbrance, Vessel Arrest, Costs (indemnity and 2 B), Strike Out, Summary Judgment, Discontinuance
Contract Tort Property Civil Procedure Maritime Misrepresentation Deceptive Conduct Negligence +6 more

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Parties

Barry Walters

First Plaintiff

Barrington Charters Limited

Second Plaintiff

Taylor Marine Limited

First Defendant

Lawrie Abel

Second Defendant

LR Abel & Company Limited

Third Defendant

Ken Davidson

Fourth Defendant

John Hayman

Fifth Defendant

Procedural Posture

Civil: Misrepresentation and Negligence Concerning Sale of a Vessel / Discontinuance Against Fourth Defendant; Costs Hearing Following Interlocutory Application to Strike Out/summary Judgment

Legal Issues

  1. 1 Whether the fourth defendant made representations to check that the vessel was free of encumbrances
  2. 2 Whether the plaintiffs pursued a hopeless or wholly unmeritorious case justifying indemnity costs
  3. 3 Whether costs should be fixed on an indemnity basis or on the 2B scale and the appropriate time allowances for preparation and hearing

Ratio Decidendi

Where plaintiffs promptly discontinued proceedings against the fourth defendant upon receipt of affidavit evidence undermining their earlier brief, they did not persist with a hopeless case; indemnity costs were refused and the fourth defendant was awarded costs on a 2B basis with adjusted time allowances (1.5 days for commencement of defence, 0.5 day for hearing) and specified itemised amounts; disbursements fixed by the registrar were also allowed.

Court Disposition

Plaintiffs ordered to pay fourth defendant's costs on a 2B basis; indemnity costs refused; leave to discontinue the claim against the fourth defendant previously granted.

Orders

  • Plaintiffs to pay fourth defendant's costs assessed on a 2B basis.
  • Costs on a 2B basis awarded as follows: commencement of defence by defendant (1.5 days) $3,200; filing memorandum for case management conference 21 April 2008 $640; appearance at case management conference 21 April 2008 $480; preparing and filing interlocutory application to strike out/summary judgment and...