Black v Giltech Precision Castings (2004) Limited HC Christchurch CIV-2010-412-000105

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-412-000105

UNDER the Companies Act 1993

IN THE MATTER OF an application by shareholders under s 174 of the Companies Act 1993

BETWEEN PAUL BLACK First Plaintiff

ANDPAUL BLACK GLENDA BLACK Second Plaintiffs

ANDWMC TRUSTEE LIMITED Third Plaintiff

ANDGILTECH PRECISION CASTINGS (2004) LIMITED
First Defendant

ANDP & W CONSOLIDATED LIMITED Second Defendant

Judgment: 17 October 2011

JUDGMENT OF HON JUSTICE FRENCH
as to Costs

[1] There have been five interlocutory applications in this proceeding. Four were brought by the plaintiffs, and one by the defendants.

[2] In my decision of 5 September 2011, I indicated a provisional view that costs should lie where they fall, but invited counsel to make submissions should they wish
to be heard.

BLACK V GILTECH PRECISION CASTINGS (2004) LIMITED HC CHCH CIV-2010-412-000105 17 October
2011

[3] Since then, both parties have filed submissions accusing the other of unreasonable behaviour and seeking increased costs.

[4] In my assessment, there is fault on both sides. Each has put the other to unnecessary cost. The plaintiff has been guilty of significant delays and taken points that should not have been taken. On the other hand, the defendants failed to act promptly in relation to the representation issue and must also take responsibility for the fact that aspects of their request for particulars went well beyond the proper scope of particulars.

[5] Not only is there fault on both sides, but I also consider that the honours were evenly divided. Contrary to a submission made by Mr Farrow, I consider that the outcome of the representation order can fairly be characterised as the plaintiffs being successful. As reflected in my judgment, the focus of the hearing was very much on the issue of Anderson Lloyd assisting with briefs of evidence.

[6] I am therefore not persuaded to depart from my provisional view. [7] Costs on all five applications are to lie where they fall.

Solicitors:
R Kelly, Dunedin
Webb Farry, Dunedin

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, Paul Black and others brought an application against Giltech Precision Castings (2004) Limited and P & W Consolidated Limited under section 174 of the Companies Act 1993. The plaintiffs, who are shareholders in Giltech Precision Castings, sought an order for the defendants to pay costs incurred during the proceedings. The case revolved around the issue of whether the defendants should bear the costs of the proceedings, which included five interlocutory applications.

The court had to determine whether the plaintiffs' costs should be borne by the defendants or if the costs should lie where they fall. The defendants argued that the plaintiffs had unreasonably delayed the proceedings and taken points that were not necessary. The plaintiffs, on the other hand, accused the defendants of being slow to address the representation issue and of requesting particulars that went beyond the proper scope. The court had to weigh the fault of both parties and determine if there was a significant imbalance in the honours.

The court found that there was fault on both sides and that the honours were evenly divided. The court was not persuaded to depart from its provisional view that costs should lie where they fall. The court found that the plaintiffs had delayed the proceedings significantly and taken points that were not necessary. However, the defendants were also found to have failed to act promptly in relation to the representation issue and had requested particulars that went beyond the proper scope. The court concluded that both parties had contributed to the costs of the proceedings and that the costs should not be borne by the defendants alone.

The court ordered that costs on all five applications were to lie where they fall. The plaintiffs were not entitled to recover their costs from the defendants, and the defendants were not ordered to pay any costs to the plaintiffs. The court's decision was based on its assessment of the fault of both parties and the honours that were achieved in the proceedings. The court found that there was no significant imbalance in the honours, and therefore, the costs should not be awarded to either party.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established