Costs — notice of discontinuance — 2B — contracting party — District Court Rules 2014, r 15.20 — High Court Rules 2016, rr 14.3 & 15.2 — Construction Contracts Act 2002 — Earthquake Commission v Whiting, Jones & Peebles [2015] NZCA 144. The first defendant sought costs on a 2B basis following the plaintiff filing a notice of discontinuance of proceedings. The total sum sought was $2,225. The plaintiff had mistakenly entered proceedings with the first defendant on the basis that they were a party to a contract; then applied to join the second defendant in the proceedings, prior to applying for discontinuance in relation to the first defendant. In a joint memorandum between the parties for the first case management conference, there was agreement that costs would be categorised as 2B. However, the plaintiff argued that the Court should exercise its discretion against the presumption of awarding costs incurred in proceedings up to and including the discontinuance, in accordance with DCR, r 15.2, on the basis it had a firm and reasonable belief that the first defendant was a contractual party. Alternatively, that the costs should be calculated on a 1A basis. The Judge did not consider the presumption in the rules should be displaced in this situation and, given there had been prior agreement to 2B categorisation, the Judge ordered the plaintiff pay costs on a 2B basis in the sum of $2,225, conditional on the the first defendant providing proof of actual legal costs. Judgment Date: 2 May 2019.