IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CIV-2018-419-109
[2019] NZHC 3053	

BETWEEN	RENÉ BURRI and
VERENA CHRISTINA MARIA BURRI
Plaintiffs	
AND	SCHULER BROTHERS LIMITED
Defendant	

Appearances:	Mr D Taylor for plaintiffs Mr T Braun for defendant	
Judgment:	21 November 2019	

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[On the papers]

This judgment was delivered by me on 21 November 2019 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 21 November 2019

[1]	In my judgment of 1 October 2018 I stayed the plaintiffs’ claim and directed the parties to arbitration. I reserved costs, signalling that my preliminary view was that the defendant was entitled to costs on a 2B basis.

[2]	My judgment was the subject of an application for leave to appeal. Unusually, this was dealt with not by me but by Downs J. In any event, the plaintiffs were refused leave to appeal.

BURRI v SCHULER BROTHERS LIMITED [2019] NZHC 3053 [21 November 2019]

[3]	Counsel have now come back to me by memorandum in relation to costs.

[4]	For the defendant, Mr Braun submits that the defendant was successful in obtaining the relief it sought and that costs should follow.

[5]	As he submits, the principles are well settled:

(a)	Costs are quintessentially a matter for the court’s discretion, though of course that discretion must be exercised in a principled way;

(b)	The starting position is that costs will generally follow the event, that is to say that the successful party will be entitled to a award of costs;

(c)	Costs are awarded in accordance with the scales provided for in the High Court Rules 2016 unless the court is satisfied that the particular circumstances of the case justify a different award. There is scope for both decreased and increased costs, but such awards are relatively rare, precisely because the scales are intended to operate as the norm so that costs are predictable.

[6]	Mr Braun has calculated the defendant’s costs on a 2B basis. The costs associated with the hearing of the defendant’s application total $8,920.50 and disbursements total $660. In addition Mr Braun seeks costs in connection with this costs application of $1,912 (item 11 of the schedule; two memoranda).

[7]	Mr Braun also brings to my attention that the calculation of costs, in respect of the hearing before me at least, have been agreed, though those acting for the plaintiffs have indicated that they do not accept that any award should be made.

[8]	In his memorandum in response for the plaintiffs, Mr Taylor submits that this is a case in which the Court should not make any costs award; that costs should be left to lie where they have fallen. This, he submits, is justified because both parties enjoyed a measure of success in the litigation. In short he puts in issue which party was successful in the proceeding.

[9]	The argument is that the plaintiffs were successful in establishing that a term should be implied into the parties’ contract requiring the defendant to take certain steps within a reasonable period of time. On that issue, as he says, the plaintiffs succeeded. He accepts of course that the defendant succeeded on the issue of whether it had complied with any such implied term.

[10]	He also contends that, whereas I referred the parties to arbitration, the relief originally sought by the defendant was the dismissal of the proceeding altogether. He accepts, however, that the question of referral to arbitration was canvassed during the course of the hearing.

[11]	The view I take is that the defendant was largely successful. Essentially, what it sought was to bring the proceeding to a halt, and that was the outcome. It is fair to say that the argument shifted during the course of the hearing and that the outcome reflected in my judgment, whilst it should not have come as a surprise to counsel, was probably not what either party contemplated going into the hearing. But analyses of that sort are exactly what the current rules were introduced to avoid.

[12]	In the end, the conclusion I have reached is that the defendant should have its costs in respect of the hearing before me as calculated in Mr Braun’s memorandum.

[13]	I make no order in relation to this costs application. Counsel should have been able to agree on costs, and the responsibility for that is a shared one.

Associate Judge Johnston

Solicitors:
Braun Bond and Lomas, Hamilton Edmonds Marshall, Matamata for plaintiffs