AB Limited v UV Limited - [2024] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000583

[2024] NZHC 1901

BETWEEN
AB LIMITED as trustee of the CD Trust and EF Trust
First Plaintiffs

GH, IJ and KL as trustees of the MN Trust Second Plaintiffs

GH, and KL as trustees of the OP Trust Third Plaintiffs

GH and QR as trustees of the ST Trust Fourth Plaintiffs

AND

UV LIMITED

First Defendant

Continued overleaf

Hearing: On the papers

Counsel:

J WS Baigent and L B Harrison for Plaintiffs in 583 proceeding A J Thorn for Plaintiffs in 1026 proceeding

W Akel and S T Coupe for Defendants in both proceedings

Judgment:

12 July 2024

COSTS JUDGMENT OF ANDERSON J

This judgment was delivered by me on 12 July 2024 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..
Registrar/Deputy Registrar

Solicitors: Gilbert Walker, Auckland
Thorn Law, Auckland Simpson Grierson, Auckland

AB LTD v UV LTD [2024] NZHC 1901 [12 July 2024]

WX
Second Defendant

CIV-2023-404-001026

BETWEEN A LIMITED
First Plaintiff

B, C and D Second Plaintiffs

E and F
Third Plaintiffs

AND X
First Defendant

Y
Second Defendant

[1] In these civil proceedings the plaintiffs allege negligence and make associated allegations against the defendants arising out of the collapse of the Penrich Global Macro Fund (Penrich Fund) in March 2020. The two proceedings have different plaintiffs but are being case managed together and are expected to be heard by the same Judge.1

[2] This judgment addresses issues of costs arising out of my judgment dated 24 May 2024.2 In that judgment I addressed two applications. The first was an application by the plaintiffs in CIV-2023-404-1026 (1026 plaintiffs) for a declaration regarding an order of the District Court concerning name suppression. The second was an application by the defendants for civil suppression orders, applying Erceg v Erceg,3 in the event I concluded the District Court orders did not have the effect of suppression of the defendants’ names.

[3] The plaintiffs in CIV-2023-404-583 (583 plaintiffs) successfully opposed the defendants’ application but made no application of their own. Those parties have not been able to agree costs on the defendants’ application. The defendants accept that the 583 plaintiffs are the successful party and are entitled to costs. However, they contest the quantum sought as over-stated for what they say is a straightforward interlocutory application.

[4] The 583 plaintiffs seek costs of $18,091.25. The defendants say that $6,811.50 represents the correct assessment of costs which, with disbursements of $95.65 is a total of $6,907.15.

[5] The issue of costs between the defendants and the 1026 plaintiffs relating to my judgment has been resolved. The plaintiffs in that proceeding sought (and it was agreed would receive) scale costs of $6,453.00 for opposing the defendants’ application. The defendants say this aligns with the defendants’ position.

[6] The differences between the parties are the categorisation of the proceedings, the appropriate time for each step, and whether costs should…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB Limited v UV Limited

Details

AGLC: AB Limited v UV Limited [2024] NZHC 1901
Case: [2024] NZHC 1901
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the case of AB Limited v UV Limited, the plaintiffs, who are trustees of various trusts, allege negligence against the defendants arising from the collapse of the Penrich Global Macro Fund in March 2020. This case involves complex issues of costs arising from an interlocutory application concerning name suppression. The proceedings in question are CIV-2023-404-583 and CIV-2023-404-1026, which are being managed together and are expected to be heard by the same judge. This particular judgment addresses the costs incurred in relation to an earlier judgment delivered on 24 May 2024, which dealt with applications for name suppression orders.

The primary legal issues before the court were the categorisation of the proceeding for costs purposes, the appropriate time allocation for each step of the proceeding, and the quantum of costs to be awarded. The plaintiffs in CIV-2023-404-583 opposed the defendants' application for civil suppression orders and sought costs for their successful opposition. The defendants contested the quantum of costs sought by the plaintiffs, arguing that the amount was overstated for a straightforward interlocutory application. The court was required to determine the appropriate categorisation of the proceeding, the time allocation for each step, and the quantum of costs to be awarded.

The court first considered the categorisation of the proceeding. The parties had previously agreed that the proceeding was likely to be a Category 3 complex proceeding due to its complexity and significance. The court agreed with this assessment and directed that the proceeding be categorised as Category 3. The court noted that an "application-based" approach to categorisation was not appropriate and that the proceeding should be categorised as a whole. The court also considered the time allocation for each step of the proceeding, accepting the defendants' submission that band B was appropriate for all steps, as there was nothing sufficiently complex about the issues or the plaintiffs' submissions that justified a comparatively large amount of time.

Finally, the court determined the quantum of costs to be awarded. The plaintiffs sought $18,091.25, while the defendants argued that $6,811.50 was the correct amount, with disbursements of $95.65. The court certified two counsel for the plaintiffs and allowed costs for the preparation of the joint memorandum. The resulting costs award is set out in the attached schedule, with a total of $12,796.25 in costs and $95.65 in disbursements.

In conclusion, the court categorised the proceeding as a Category 3 complex proceeding, determined that band B was appropriate for all steps, and awarded costs of $12,796.25, along with disbursements of $95.65. This judgment provides clarity on the costs associated with the interlocutory application regarding name suppression in these complex proceedings.

Orders