100 Investments Ltd v Walker

[2024] NZHC 565

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2024] NZHC 565

BETWEEN

100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

On the papers

Counsel:

A Barker KC and R Hucker for the first to fourth plaintiffs in 1160 and the first to fourth defendants in 0274

D Bigio KC, D Salmon KC and N R Frith for the second defendant in 1160 and the sixth defendant in 0274

J MacGillivray and W Hofer for the third defendant in 1160 and the seventh defendant in 0274

D Cooper KC for Mr Walker
J Moss, G Davis and C Hanafin for the fifth to seventeenth defendants in 1160 and the first to thirteenth plaintiffs in 0274

Date:

15 March 2024

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 15 March 2024 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD and OTHERS v WALKER and OTHERS [2024] NZHC 565 [15 March 2024]

CIV 2019-404-1160

FTG SECURITIES LTD

Second Plaintiff

RFD FINANCE LTD
Third Plaintiff

TOMANOVICH HOLDINGS LTD
Fourth Plaintiff

AND

LPF GROUP LTD

Second Defendant

SPF NO 10 LTD (In Liquidation) Third Defendant

KEVIN JOHN WHITLEY as Liquidator of Property Ventures Ltd (In Liquidation) Fourth Defendant

PROPERTY VENTURES LTD (In

Liquidation)

Fifth Defendant

CASHEL VENTURES LTD (In

Receivership and Liquidation) Sixth Defendant

TAY VENTURES LTD (In Receivership and Liquidation)

Seventh Defendant

LIVINGSPACE PROPERTIES LTD

(In Liquidation) Eighth Defendant

TUAM VENTURES LTD (In Liquidation) Ninth Defendant

CASTLE STREET VENTURES LTD (In

Liquidation) Tenth Defendant

LICHFIELD VENTURES LTD (In

Liquidation)

Eleventh Defendant

Continued…

ST ASAPH VENTURES LTD (In

Liquidation)
Twelfth Defendant

BEECHNEST LTD (In Receivership and Liquidation)
Thirteenth Defendant

92 LICHFIELD LTD (In Receivership and Liquidation)
Fourteenth Defendant

MONTECRISTO CONSTRUCTION

COMPANY LTD (In Liquidation) Fifteenth Defendant

FIVE MILE HOLDINGS LTD (In
Liquidation)
Sixteenth Defendant

CIV 2022-404-274

BETWEEN

KEVIN JOHN WHITLEY

First Plaintiff

PROPERTY VENTURES LTD (In

Liquidation) Second Plaintiff

FIVE MILE HOLDINGS LTD (In

Liquidation) Third Plaintiff

CASHEL VENTURES LTD (In Liquidation and Receivership)

Fourth Plaintiff

TAY VENTURES LTD (In Liquidation and Receivership)

Fifth Plaintiff

LIVINGSPACE PROPERTIES LTD

(In Liquidation) Sixth Plaintiff

BEECHNEST VENTURES LTD (In

Liquidation) Seventh Plaintiff

Continued…

AND

CASTLE STREET VENTURES LTD (In

Liquidation)
Eighth Plaintiff

LICHFIELD VENTURES LTD (In

Liquidation) Ninth Plaintiff

92 LICHFIELD LTD (In Liquidation) Tenth Plaintiff

ST ASAPH VENTURES LIMITED (In

Liquidation)
Eleventh Plaintiff

MONTECRISTO CONSTRUCTION

COMPANY LTD (In Liquidation) Twelfth Plaintiff

TUAM VENTURES LTD (In Liquidation) Thirteenth Plaintiff

100 INVESTMENTS LTD
First Defendant

FTG SECURITIES LTD
Second Defendant

RFD FINANCE LTD
Third Defendant

TOMANOVICH HOLDINGS LTD
Fourth Defendant

ROBERT BRUCE WALKER

Fifth Defendant

LPF GROUP LTD
Sixth Defendant

SPF NO 10 LTD (In Liquidation) Seventh Defendant

[1]                 This judgment deals with costs issues arising from various interlocutory applications. Most, but not all, of those applications were determined in judgments I delivered between 17 August 2023 and 12 February 2024.

Costs on application by Whitley parties to restrain Minter Ellison Rudd Watts from acting for LPF and SPF

[2]                 In my judgment dated 17 August 2023, I held that LPF was entitled to costs from the Whitley parties on this application.1

[3]                 The parties are largely agreed as to quantum, save for one issue. This is whether LPF is entitled to claim costs for a memorandum that it prepared after the hearing. The memorandum sought to further answer a question I had asked during the hearing.

[4]                 I had not asked for the memorandum. I see no reason why LPF should have costs for it. Accordingly, on this application I accept the calculation of the Whitley parties of costs and disbursements totalling $10,133.65.

[5]The Whitley parties are to pay $10,133.65 to LPF on this application.

Costs on applications by LPF and SPF to strike out the claims brought by the Whitley parties

[6]                 In my judgment dated 17 August 2023, I held that the Whitley parties were entitled to costs on LPF’s and SPF’s strike-out applications.2 I expressed the preliminary view that a modest reduction in costs was appropriate to reflect the modest success enjoyed by LPF and SPF on the applications.

[7]                 One of the reasons that the strike-out applications did not succeed was that the Whitley parties had  filed, two weeks before the hearing,  an  amended  statement    of claim. During the hearing, Mr Moss for the Whitley parties accepted that further repleading would be required to answer some of the points made in the strike-out applications. After my judgment was delivered, the Whitley parties filed,

1      100 Investments Ltd v Walker [2023] NZHC 2227 at [141].

2 At [141].

as anticipated,  a   further   amended  statement of  claim.     The amendments were substantial.

[8]                 In those circumstances LPF and SPF submit they were the successful parties on the strike-out applications. They seek costs. In response, Mr Moss submitted that LPF and SPF are attempting to relitigate the decision I have already made that the Whitley parties are entitled to costs. He submitted that was a point for appeal and the only issue was the quantum of costs which should be awarded to the Whitley parties.

[9]                 Ordinarily Mr Moss would have a good point. But here there was a post- judgment development. The further amended statement of claim filed by the Whitley parties shows the extent to which they had to replead their claim in response to the strike-out applications. Having considered that, I have come to the view that success has been shared and costs on these applications should lie where they fall.

Costs on application by secured creditors to be heard on strike-out application

[10]             The plaintiffs in the 1160 proceeding (the secured creditors) wished to be heard on the strike-out applications and restraint application. They were initially granted leave to do so in a minute issued by Wylie J on 9 February 2023. Wylie J subsequently vacated that minute and required the secured creditors to file an application to be heard. The secured creditors did so.  LPF opposed the application.  I allowed the secured creditors to be heard on the applications.

[11]             The secured creditors seek costs on their application to be heard, together with an uplift of 50 per cent. LPF accepts that it should pay costs, but not an uplift. Given that the application was made as a result of Wylie J’s direction, I see no basis for an uplift.

[12]             LPF is therefore to pay costs and disbursements of $2,412 to the secured creditors on this application.

[13]             The secured creditors also seek costs for their submissions on the strike-out applications. Given that success on those applications was shared, I make no order for costs in relation to those applications.

Costs on application by LPF for security for costs from the Whitley parties

[14]             In my judgment dated 15 September 2023, I held that the Whitley parties were entitled to costs on LPF’s application for security for costs.3

[15]             There are four issues between the parties. The first is whether the Whitley parties should have a full allowance for preparation of their notice of opposition when this was combined with their notice of opposition to LPF’s strike-out application. Given that the notice of opposition is detailed and sets out full grounds for opposing the security for costs application, the Whitley parties should have a full allowance.

[16]             The second is whether the Whitley parties should have any allowance for appearance at the hearing. LPF says no oral hearing time was taken up by this application, so there should be no allowance. I disagree. There was some hearing time, albeit brief. I allow a quarter of a day.

[17]             There is a minor issue as to whether the Whitley parties are entitled to an allowance for a memorandum filed post-hearing. I allow 0.2 of a day for one memorandum.

[18]             Finally, I accept LPF’s position that the Whitley parties should recover only one third of their disbursements on travel and accommodation, given that those disbursements were incurred in respect of three different applications.

[19]             The result is that LPF is to pay costs and disbursements of $8,915.54 to the Whitley parties on the security for costs application.

Costs on applications by LPF and SPF for further discovery from the Whitley parties, for security for costs from the Whitley parties and for leave to appeal the security for costs decision

[20]             In my judgment dated 18 December 2023, I held that the Whitley parties were entitled to costs on LPF’s and SPF’s applications for further discovery, LPF’s and

3      100 Investments Ltd v Walker [2023] NZHC 2584 at [31].

SPF’s applications for security for costs, and LPF’s application for leave to appeal my earlier security for costs decision.4

[21]             LPF and SPF agree with the quantum of costs claimed by the Whitley parties. Accordingly:

(a)LPF is to pay costs and disbursements of $20,013.19 to the Whitley parties on its three applications.

(b)SPF is to pay costs and disbursements of $7,210.50 to the Whitley parties on its two applications.

Costs on challenges by LPF to evidence served by the secured creditors

[22]             In my judgment dated 18 December 2023, I held that LPF was entitled to costs on its challenges to the evidence served by the secured creditors. LPF claims costs and disbursements totalling $4,086.50. The secured creditors take no issue with that quantum.

[23]Accordingly,  the  secured  creditors  are  to  pay  costs  and  disbursements of

$4,086.50 to LPF on the evidence challenges.

Costs on applications by the secured creditors and the Whitley parties for leave to discontinue against Mr Scutter

[24]             These applications were resolved by consent soon after they were filed. The secured creditors and the Whitley parties seeks costs on the applications from LPF, SPF and Mr Walker. LPF and SPF resist costs, but I consider the applications were properly brought after LPF, SPF and Mr Walker declined to sign and return a notice of discontinuance.

[25]             Accordingly, LPF, SPF and Mr Walker are to pay $2,890 to the secured creditors and $1,934 to the Whitley parties on these applications.

4      100 Investments Ltd v Walker [2023] NZHC 3740 at [29] and [34].

Costs on applications by LPF for leave to appeal discovery decision and for adjournment

[26]             In a judgment dated 7 February 2024, I held that the Whitley parties were entitled to costs on LPF’s application for leave to appeal my discovery decision and that the Whitley parties and the secured creditors were entitled to costs on LPF’s application for adjournment.5

[27]             LPF agrees with the quantum of costs claimed by the secured creditors and the Whitley parties. Accordingly:

(a)LPF is to pay costs and disbursements of $6,802 to the secured creditors on the adjournment application.

(b)LPF is to pay costs and disbursements of $12,800.21 to the Whitley parties on its two applications.

Costs on application by LPF for leave to appeal adjournment decision

[28]               In my judgment dated 12 February 2024, I held that the Whitley parties and the secured creditors were entitled to costs on LPF’s application for leave to appeal my adjournment decision.6

[29]             LPF agrees with the quantum of costs claimed by the secured creditors. The Whitley parties have claimed costs in the same amount.

[30]I order that:

(a)LPF is to pay costs and disbursements of $5,129 to the secured creditors parties on this application.

(b)LPF is to pay costs and disbursements of $5,129 to the Whitley parties on this application.

5      100 Investments Ltd v Walker [2024] NZHC 93 at [46].

6      100 Investments Ltd v Walker [2024] NZHC 144 at [19].

Set-off

[31]             To the extent that parties have been awarded costs against each other, those costs award should be set off in the usual way under r 14.17 of the High Court Rules 2016. I leave the parties to do the calculations.

Campbell J