DUSTIN V WEATHERTIGHT HOMES RESOLUTION SERVICE HC AK CIV-2006-404-276 [2006] NZHC 759 (3 July 2006)

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2006-404-276

BETWEENROSS KEITH DUSTIN

Plaintiff

AND WEATHERTIGHT HOMES

RESOLUTION SERVICE

First Defendant

Hearing: 1 June 2006

14 June 2006

19 June 2006

Appearances: S R G Judd for Plaintiff

J A L Oliver for First Defendant

P A Robertson for Fourth Defendant

Judgment: 3 July 2006 at 5:00 pm

RESERVED JUDGMENT OF COURTNEY J

AS TO COSTS

This judgment was delivered by Justice Courtney on 3 July 2006 at 4:00 pm pursuant to

r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors: Davies Law, P O Box 15547, New Lynn

Fax: (09) 826-2671

Crown

Law Office, P O Box 2858, Wellington

Fax: (04) 494-5680 J A L Oliver

Heaney & Co, P O Box 105391, Auckland

Fax: (09) 367-7009 P A Robertson

DUSTIN V WEATHERTIGHT HOMES RESOLUTION SERVICE HC AK CIV-2006-404-276 3 July 2006

[1] I have reviewed the memorandum of counsel in respect of costs. The first defendant does not seek costs. The fourth defendant does seek costs on the basis that they should follow the event in this case. The plaintiff resists this claim for costs on the following grounds:

a) The fourth defendant succeeded on a technical point whereas Mr

Dustin was vindicated on the substantive issue;

b) On a proper interpretation of the Building Act 1991 the plaintiff

should not have been joined into the WHRS claim but is now trapped

in the claim because the adjudicator was bound by the decision in

Cromwell Plumbing Drainage & Services Ltd v De Geest Bros

Construction Limited (1995) 9 PRNZ 218 which (on my view) was

wrongly decided. The plaintiff is suffering a substantial injustice as a

result;

c) There were no disputed facts;

d) The fourth defendant did not serve the plaintiff with a statement of

defence and did not give any advance notice of its argument based on

stare decisis. The first indication that the plaintiff had of this

argument was on receipt of written submissions the day before the

hearing, as a result of which plaintiff's counsel was unable to deal

with that argument in his written submissions and may have

approached the hearing differently.

[2] I have some sympathy with Mr Dustin's position. I am in no doubt that, save

for the binding effect of the Cromwell Plumbing decision, Mr Dustin would not be a

party to the WHRS claim. Argument on this point took up dominated the hearing.

The stare decisis argument advanced by the fourth defendant had the appearance of a

last minute thought. It was not referred to in the statement of defence. It was not

alluded to any earlier discussions between counsel, including when an interim order

staying the WHRS claim was made by consent. The fourth defendant's written

submissions, filed the day before the hearing, devoted just single paragraph to this

part of its argument. In argument, there was no authority cited and no real attempt to

elaborate on the rather sparse written submissions.

[3] It seems clear to me that both the plaintiff and fourth defendant proceeded on

the basis that the main issue between them was whether Cromwell Plumbing was

correctly decided. Had the fourth defendant raised the argument that there had been

no error of law at an earlier stage it seems likely that Mr Dustin may have taken a

different approach. I consider that any costs incurred by the fourth defendant in

relation to this hearing were incurred at least in good part because of the late

identification of the issue on which it ultimately succeeded.

[4] Under Rule 48D the Court may refuse to make an order for costs in certain

circumstances. These include:

· 48D(d). Although the party claiming costs has succeeded overall, that

party has failed in relation to a cause of action or issue which

significantly increases the costs of the party opposing the costs; and

· 48D(f). Some other reason exists which justifies the Court refusing

costs or reducing costs despite the principle that determination of

costs should be predictable and expeditious.

[5] I consider that both these subsections apply and I decline to award costs in

this case.

P Courtney J