Bangma v Bangma - [2020] NZHC 3204

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000155

[2020] NZHC 3204

IN THE MATTER of claims of breach of fiduciary duty and duty of care by the trustees and executors of the Estate of JACOB BANGMA

BETWEEN

JOHN CHARLES ANDREW BANGMA

Plaintiff

AND

PAUL MARTIN DAVID BANGMA and MICHAEL JOHN FRENCH

Defendants

Hearing: 19 November 2020

Counsel:

B Nevell and S M D Guest for Plaintiff

J R Pullar and A E Kennerley for first-named Defendant C M N Milne for second-named Defendant

Judgment:

7 December 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 December 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BANGMA v BANGMA Costs Judgment [2020] NZHC 3204 [7 December 2020]

The claim for costs

[1] By a judgment of 18 August 2020, I determined applications by the plaintiff for further and better discovery and challenges to privilege asserted by the defendants in their affidavits of documents (the applications).1

[2] This judgment concerns costs on those applications. I received written submissions and conducted a short telephone conference on 19 November 2020.

Background

[3] The plaintiff made the applications during the COVID-19 lockdown. Amended applications were served on 8 May 2020. Both defendants opposed the applications. Written submissions were later exchanged. The applications were set down for hearing on 4 August 2020.

[4] During the afternoon of 3 August 2020 (the day prior to the hearing), the plaintiff’s counsel filed a memorandum advising that the application for particular discovery was abandoned for all except three categories of documents. For those three categories, it was acknowledged the documents sought were not relevant to issues raised by the plaintiff’s pleadings. There was an indication a further amended statement of claim would be filed. The challenge to privilege was similarly abandoned for all but one category of document.

[5] The remaining matters were heard by me on 4 August 2020. On 18 August 2020, I issued my judgment:

(a)dismissing the application for particular discovery; and

(b)holding that privilege was, in principle, available for the category of documents challenged by the plaintiff, but reserving my decision pending inspection of those documents.

1 Bangma v Bangma [2020] NZHC 2080.

[6] On 8 September 2020, the defendants submitted the documents for which privilege was maintained to the Court for my review. Notwithstanding their claim to privilege the defendants voluntarily disclosed several email chains to the plaintiff and, accordingly, the documents I had to review were few in number.

[7] On 11 September 2020, I issued a minute stating that I was satisfied that the documents were subject to privilege under s 54 of the Evidence Act 2006 and did not need to be produced for the inspection of the plaintiff.

The position of the parties

[8] The defendants both claim costs from the plaintiff on a scale 2B basis together with a 50 per cent uplift. They argue…

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 Bangma v Bangma

Details

AGLC: Bangma v Bangma [2020] NZHC 3204
Case: [2020] NZHC 3204
Decision Date: 7 December 2020

CaseChat Overview and Summary

The case of Bangma v Bangma involved the plaintiff, John Charles Andrew Bangma, bringing applications for further and better discovery and challenging the privilege asserted by the defendants, Paul Martin David Bangma and Michael John French. The dispute centred on claims of breach of fiduciary duty and duty of care by the trustees and executors of the Estate of Jacob Bangma. The legal issues before the court were primarily concerned with the costs associated with these applications and whether the plaintiff was entitled to any costs or if the defendants should be awarded increased costs.

The court found that the defendants were completely successful in their opposition to the plaintiff's applications. The plaintiff's application for further discovery was dismissed, and the defendants' claim to privilege for the discovery documents was upheld. The court also determined that the plaintiff's arguments for success or necessity of the applications were without merit. The court held that the defendants were entitled to costs on a scale 2B basis, with an additional 20 per cent uplift to account for the increased costs and complexity of the proceedings. The court also decided that only one set of costs would be awarded, despite the defendants being represented by different firms, due to the substantial overlap in their approach and arguments.

In summary, the court ordered the plaintiff to pay the defendants' costs and disbursements in the sum of $9,144.20. The court found that the defendants were completely successful in their opposition to the plaintiff's applications, and the plaintiff's arguments for success or necessity of the applications were without merit. The court awarded costs on a scale 2B basis, with an additional 20 per cent uplift, and decided that only one set of costs would be awarded despite the defendants being represented by different firms.

Orders