MOTUIHE ISLAND LTD V HER MAJESTY'S ATTORNEY-GENERAL IN RESPECT OF THE MINISTER OF CONSERVATION HC AK CIV 2006-404-309

MOTUIHE ISLAND LTD V HER MAJESTY'S ATTORNEY-GENERAL IN RESPECT OF THE MINISTER OF CONSERVATION HC AK CIV 2006-404-309 25 August 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-309BETWEEN MOTUIHE ISLAND LIMITED Plaintiff AND HER MAJESTY'S ATTORNEY- GENERAL IN RESPECT OF THE MINISTER OF CONSERVATION Defendant Hearing: By memoranda Appearances: G. Bogiatto for Plaintiff J. Burns for Defendant Judgment: 25 August 2006 at 4pmJUDGMENT OF ASSOCIATE JUDGE D.H. ABBOTT RE COSTS ON APPLICATION TO STRIKE OUT [AND ANCILLARY DIRECTIONS]In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 25 th day of August 2006.Solicitors:G Bogiatto, Auckland – Fax 307 2725 Crown Law Office, Wellington – Fax 04 494 5680[1] An application by the defendant to strike out the plaintiff's statement of claim is currently listed for hearing at 2.15pm on 28 August 2006. Counsel for the defendant has filed two memoranda, dated 8 August 2006 and 17 August 2006: a) Advising that the defendant will not be proceeding with its application to strike out as a result of an amended statement of claim filed on 4 August 2006, but seeks costs on that application; and b) Seeking timetable directions for provision of particulars ahead of filing of a statement of defence. [2] Counsel for the plaintiff has filed a memorandum dated 21 August 2006, opposing any order for costs.Costs[3] I consider that the application to strike out was justified having regard to the content of the amended statement of claim filed on 4 August 2006. The plaintiff has changed the legal basis for its two original causes of action. Although I accept counsel for the plaintiff's submission that the Court would have given the plaintiff opportunity to make the changes, rather than strike the claim out, this nevertheless means the claim has been successful to the extent of getting those changes made. The general principle that a successful party is entitled to costs applies. [4] Having said that, I accept counsel for the plaintiff's submission that the factual basis for the claim has not changed. This means that most of the preparation work to date will not have been wasted. In my view, the defendant is only entitled to costs that are specifically related to the application to strike out. I will now deal with each of the items claimed by the defendant in counsel's memorandum of 8 August 2006, on that basis:a) I disallow the claim under item 2, on the basis that the substantive basis of the claim will not have to be re-visited in a major way. However, in place of that, I will allow costs under item 3.6 in that a revised pleading will be needed and I consider that to be a direct consequence of the challenge brought under the application to strike out; b) I disallow the claim under items 4.10 and 4.11 (attendance at the first case management conference, and the memorandum for the second case management conference). These conferences addressed matters other than the strike out, and have helped the overall advancement of the case; c) The claim under 4.12 is allowed; d) I consider it reasonable to allow a claim for preparation (under item 4.14). There were only seven working days left between delivery of the amended pleading, and time for delivery of the defendant's synopsis. The hearing was to have taken place on 28 August 2006, but the defendant's synopsis of argument was due on 14 August 2006. Counsel advises that the amended pleading was received on 4 August 2006, and that the defendant had by that time spent a substantial amount of time in preparation for delivery of the synopsis by due date. I allow this claim on the basis of the half day allocated for the hearing; e) I allow the claim under item 11 for preparation of the defendant's memorandum for costs (by analogy with item 4.10); f) I also allow the disbursements claimed (on the basis that a filing fee is payable on the amended statement of defence which will follow the change to the pleading).[5] Accordingly, I order that the plaintiff pay the defendant costs of and incidental to the application to strike out on a 2B basis in respect of the items and disbursements allowed above.Vacation of defended hearing[6] There now being no need for it, the hearing at 2.15pm on 28 August 2006 is vacated (appearances are excused).Timetable directions[7] The defendant has served notice on the plaintiff requiring further particulars of the amended statement of claim. Counsel asks that they be provided before the defendant is required to file its amended defence. The time for responding set down by r 185 expired on 22 August 2006. Counsel for the plaintiff asks for the time for response to be extended to 28 August 2006. [8] I make the following timetable orders: a) The time by which the plaintiff is to respond to the defendant's request for further particulars of the second amended statement of claim is extended to 28 August 2006; b) The time by which the defendant is to file and serve his defence to the second amended statement of claim is extended to 4 September 2006.Next event[9] There is to be a further case management conference at 11.45am on 5 September 2006 (by telephone). Counsel are to file the usual memoranda in advance addressing:a) Timetabling for any interlocutory applications anticipated; b) Any settlement initiatives that may be appropriate; c) Trial (duration, hearing and setting down dates and any non-standard pre-trial directions required). ____________________________Associate Judge DH Abbott