Ayers v LexisNexis New Zealand Limited - [2015] NZHC 1845

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1274 [2015] NZHC 1845

BETWEEN
DANIEL FRANCIS AYERS

First Plaintiff

ELEMENTARY SOLUTIONS LIMITED Second Plaintiff

AND

LEXISNEXIS NEW ZEALAND LIMITED

Defendant

On the Papers

Counsel:

J Sumner and S Eglinton for the Plaintiffs
D McLellan QC for the Defendant

Judgment:

5 August 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] On 15 June 2015 I gave judgment on the defendant’s applications for orders striking out Elementary’s claims for damages as set out in its fourth amended statement of claim, and for security for costs. Costs on the application for security were reserved. While I indicated that I was not then inclined to award costs beyond a scale 2B award on the strike-out application, I invited counsel to file submissions on that application if agreement could not be reached. LexisNexis now asks that I fix costs on that application

[2] LexisNexis had also applied for an order for further and better discovery, directed to the steps Elementary claimed to have taken in attempting to mitigate its losses. At the hearing on 27 May 2015, Elementary’s position was that there were no such documents. Mr McLellan accepted that if Mr Ayers were to make an affirmation deposing that that was the position, he would not seek to pursue the
further discovery application, except on the issue of costs.

DANIEL FRANCIS AYERS v LEXISNEXIS NEW ZEALAND LIMITED [2015] NZHC 1845 [5 August 2015]

[3] I made no orders on the further discovery application, but reserved leave to LexisNexis to request a fixture for the hearing of that application if required, by memorandum filed within 14 days of the hearing.

[4] Mr Ayers subsequently did provide an affidavit confirming that the plaintiffs held no documents relevant to the mitigation issue, but the issue is now moot – I made an order striking out the relevant part of Elementary’s pleading in my judgment given on 15 June 2015.

[5] LexisNexis seeks costs on the strike-out application on a 2B basis, and costs on the further discovery application, limited to the initial steps of filing the further discovery application and preparing written submissions on it. Disbursements are sought in the total sum of $1,387.10, including costs incurred by counsel travelling from Auckland to Wellington for the hearing.

Application for costs on the strike-out application

[6] Mr Sumner opposes the application for costs. He submits that LexisNexis was not in fact successful in having Elementary’s damages claim struck out, and relies on the observations in my judgment of 15 June 2015 that (i) the deficiencies in the plaintiffs’ fourth amended statement of claim were not likely to cause any significant prejudice to LexisNexis at trial and (ii) the real issue was whether Elementary had pleaded more than was sufficient for a general damages claim. He submits that any degree of success achieved by LexisNexis on the strike-out application was so minor that costs ought not to be awarded.

[7] I do not accept those submissions. While Elementary’s general…

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 Ayers v LexisNexis New Zealand Limited

Details

AGLC: Ayers v LexisNexis New Zealand Limited [2015] NZHC 1845
Case: [2015] NZHC 1845
Decision Date: 5 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Ayers v LexisNexis New Zealand Limited was heard on the defendant's applications for orders to strike out certain claims for damages and for security for costs. The plaintiffs, Daniel Francis Ayers and Elementary Solutions Limited, brought claims against the defendant, LexisNexis New Zealand Limited, which were subsequently amended. The legal issues before the court included the adequacy of the plaintiffs' pleadings, specifically regarding the damages claimed, and whether the defendant was entitled to further and better discovery of documents related to the plaintiffs' mitigation efforts.

The court found that while the plaintiffs' general damages claim remained, the defendant had succeeded in having three separate subparagraphs of Elementary's damages claim struck out. The court deemed the defendant substantially successful in having parts of the pleading, which effectively pleaded particulars of special damages, struck out. The court held that the defendant was entitled to some costs on the strike-out application, assessed on a 2B basis, but adjusted to account for the combined nature of the applications heard. The court awarded costs of $4,000 plus half of the disbursements claimed, totaling $4,694. Regarding the further and better discovery application, the court found it best to reserve costs on this application, to be determined following the trial.

In conclusion, the court made orders for costs of $4,000 plus disbursements of $694 against Elementary, and reserved costs on the further and better discovery application. The court also struck out the relevant part of Elementary's pleading that pertained to the mitigation of losses.

Orders