WAIKANAE TURF FARM LIMITED V RANGEVIEW INVESTMENTS LIMITED AND ANOR HC WN CIV-2004-485-2803

WAIKANAE TURF FARM LIMITED V RANGEVIEW INVESTMENTS LIMITED AND ANOR HC WN CIV-2004-485-2803 13 March 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2004-485-2803BETWEEN WAIKANAE TURF FARM LIMITED Plaintiff AND RANGEVIEW INVESTMENTS LIMITED First Defendant AND KAPITI COAST DISTRICT COUNCIL Second Defendant Judgment: 13 March 2007 In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 11.00am on the 13th day of March 2007.JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL[1] The first defendant seeks costs on its application for further and better discovery and security for costs against the plaintiff filed on 10 April 2006. [2] The costs and disbursements sought by the first defendant total $2,050.00. The plaintiff opposes any order for costs. [3] The first defendant's application for further and better discovery and security for costs was filed on 10 April 2006 and accompanied by affidavits of M.J. Francis and C.A. Purcell. The plaintiff filed formal Notice of Opposition on 27 April 2006. This related solely to the security for costs application. So far as the application for further and better discovery was concerned, the plaintiff subsequently filed a further supplementary list of documents dated 1 June 2006 which dealt with this matter.[4] The plaintiff's position in opposing costs here is that the application was not in any respect necessary following a telephone conversation between counsel on 8 March 2006. [5] It is the plaintiff's position that when the security for costs application was received, enquiries were made of the plaintiff in order to resolve the issue in a timely manner. Counsel acknowledges that it may have taken some weeks to resolve this issue, but Ms Greenhough for the plaintiff contends that the agreement reached between counsel on 8 March 2006 was that a figure for security for costs would be suggested before any such application was filed. [6] The plaintiff's position is that there is nothing before the Court to suggest that the plaintiff would not have complied with a normal request for further and better discovery and responded to the security for costs issue had counsel for the first defendant written to counsel for the plaintiff as she alleges was agreed on 8 March 2006. [7] Counsel for the first defendant has filed a detailed memorandum dated 23 February 2007 with respect to these costs issues. [8] Having considered the points made in that memorandum and also the rebuttal provided by counsel for the plaintiff in her memorandum dated 8 March 2007, it is difficult to establish definitively whether the interlocutory application filed by the first defendant on 10 April 2006 was necessary or not. So far as security for costs was concerned, it does seem that after discussions on the amount to be provided, ultimately this was agreed between the parties. And this was in the face of the plaintiff's contention that an agreement was reached on 8 March 2006 that a figure for security would be suggested before any such application was filed. [9] The discovery question too is difficult to resolve on the basis of the material filed. [10] Suffice to say that the further affidavit of documents sought from the plaintiff in this application was actually filed subsequent to the application being made.[11] That said, I am satisfied that under all the circumstances here, an award of costs in favour of the first defendant to the extent of one half of the costs amount sought together with the filing fee disbursement on the application is appropriate here. [12] Costs of $725.00 and disbursements of $600.00, making a total of $1,325.00 are therefore awarded to the first defendant against the plaintiff with respect to these applications. __________________________Associate Judge D.I. GendallSolicitors:Chris Ritchie, Solicitors, Wellington for Plaintiff Steven Lee, Barristers & Solicitors, Paraparaumu for First Defendant