TOM RYAN CARTAGE LIMITED V W STEVENSON & SONS LIMITED HC AK CIV-2009-404-5582

TOM RYAN CARTAGE LIMITED V W STEVENSON & SONS LIMITED HC AK CIV-2009-404-5582 14 June 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2009-404-5582BETWEEN TOM RYAN CARTAGE LIMITEDPlaintiffAND W STEVENSON & SONS LIMITEDDefendantHearing: On the papersCounsel: E Telle for plaintiffA I Denton and J S Langstone for DefendantJudgment: 14 June 2011 at 4:00 PMCOSTS JUDGMENT OF ALLAN J.This judgment was delivered byThe Hon. Justice Allanon14 June 2011 at 4:00pmpursuant to Rule 11.5 of the High Court Rules..Registrar/Deputy RegistrarSolicitors:Neilsons Lawyers, Onehunga, AucklandEmail: Edwin@neilsonslawyers.co.nzWilson Harle, AucklandEmail: ian.denton@wilsonharle.comCase OfficerSusanJane.Parker@justice.govt.nz[1] In this proceeding the plaintiff claims damages arising out of the alleged breach by the defendant of a contract under which the defendant was to provide to the plaintiff all of the cartage work arising from the defendant's masonry business.The defendant having sold that business, the plaintiff lost the benefit of its contract. It claims that the defendant is in breach of various legal obligations to the plaintiff and seeks damages totalling several million dollars.[2] There have been ongoing disputes between the parties with respect to thedefendant's discovery obligations. In June 2010 the plaintiff filed an application forfurther and better discovery. That application was heard by me on 17 December2010. In my subsequent judgment of 29 March 2011, I dismissed the plaintiff'sapplication but said:It should be noted that the defendant's offer to amend its pleadings in respectof losses in 2006 has played no small part in the outcome of the present application. In other words, it may have been necessary to make a confined order for further particular discovery, but for the proposed amendments. That circumstance will no doubt be taken into account by counsel in their approach to costs.1[3] In the light of that intimation, I reserved the question of costs but indicated that counsel might file memoranda if they were unable to agree. They have not been able to agree. They have, instead, filed very extensive memoranda which must have incurred legal costs on either side that exceeded the quantum of available scale costs.[4] For the plaintiff, Mr Telle says that although technically the application was dismissed, in truth the plaintiff succeeded because at the hearing Mr Denton, for thedefendant, offered to amend the defendant's statement of defence by admitting that the defendant was suffering "substantial" losses in 2006 at a time when the contractwas being negotiated. But for that amendment, he argues, the plaintiff would have obtained at least additional confined discovery and would thereby have succeeded.21 Tom Ryan Cartage v Stevenson Concrete Ltd Civ-2009-404-5582, judgment 29 March 2011 at [44].2 Ibid, at [44].[5] Moreover, he argues, the pendency of the application assisted the plaintiff in obtaining discovery of a significant quantity of additional documents which may not have been made available but for the forthcoming discovery hearing. He argues, therefore, that the plaintiff should have not only scale costs but also increased costs to reflect the grudging and piecemeal approach adopted by the defendant to its discovery obligations.[6] On the other hand, Mr Denton for the defendant argues that not only has the defendant adopted a diligent approach to discovery issues but that it has done so by reference to different and changing issues arising from the pleadings, the plaintiff having filed a second amended statement of claim at the time at which the discovery application was filed, and a third some two months later. In other words, the refusal of the defendant to give discovery of certain documents was justified by reference to the issues arising between the parties on the pleadings as amended from time to time. Mr Denton argues that the defendant ought to have an order for costs on a 2B scale, but reduced by one-quarter in order to reflect the observations in my earlier judgment at [44].[7] I am not persuaded that either party is entitled to an order for costs. The plaintiff largely failed in its application, principally by reason of the fact that the application was simply too broad and the oral argument insufficiently focused on the issues in dispute between the parties. While the plaintiff succeeded in securing a important amendment to the statement of defence (the admission of substantial losses in 2006) that concession was in my view insufficient to justify an order for costs in the light of the overall outcome of the hearing.[8] The defendant on the other hand is also disentitled to costs. Had the offer to amend the statement of defence not been made during the discovery hearing, there would have been a restricted order for the discovery of certain additional documents. An earlier amendment by the defendant would have placed it in a much stronger position with respect to costs.[9] As matters stand, however, there is merit (and fault) on both sides. In all the circumstances, I consider that the proper outcome is that the parties each bear their own costs. There will be an order accordingly................................................C J ALLAN J.