Bosman v Christian - [2022] NZHC 861

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-89

[2022] NZHC 861

BETWEEN
HERMANUS STEPHANUS BOSMAN

Plaintiff

AND

GRAHAME CHRISTIAN

First Defendant

PAUL ANTONY JAMES BLACKMAN
Second Defendant

BRONWYN SHAW
Third Defendant

Cont/d….

Hearing: On the papers

Counsel:

DJG Cox for the Plaintiff

CT Patterson and EJ Grove for the Defendants

Judgment:

28 April 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 28 April 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Lateral Lawyers, Auckland
Rennie Cox, Auckland, Auckland CT Patterson, Barrister, Auckland

BOSMAN v CHRISTIAN & ORS [2022] NZHC 861 [28 April 2022]

MILAN LUKIC
Fourth Defendant

CAREN SQUIRE
Fifth Defendant

JUNE FRANCES BENNETT
Sixth Defendant

DANA GARDINER
Seventh Defendant

ALEXANDRA CLAIRE COLE SAMSON
Eighth Defendant

DELI CONNELL
Ninth Defendant

Introduction

[1]The defendants have applied for costs:

(a)in respect of their interlocutory application for summary judgment and strike out; and

(b)in respect of the steps taken by the defendant up until the filing of the amended pleading by the plaintiff pursuant to r 7.7(8).

[2] On 14 September 2021 the defendants brought an interlocutory application for summary judgment of each of the plaintiff’s causes of action and, in the alternative, orders for strike out.

[3] The application was opposed and set down for hearing on 28 March 2022. On Friday, 11 March 2022, the plaintiff filed and served an amended statement of claim replacing the original causes of action pleaded.

[4] The defendants’ submissions for their summary judgment and strike out application were due to be filed on Monday, 14 March 2022. Instead, the defendants filed a memorandum seeking a telephone conference to discuss.

[5] A memorandum was filed by the plaintiff in reply saying the defendants were aware the plaintiff was going to file an amended pleading referring to an open letter sent by the plaintiff’s solicitors on 8 February 2022. The plaintiff’s letter was sent following the filing of the plaintiff’s notice of opposition and affidavits in support and recorded:
2.We believe it is plain that the position taken by our client that a settlement was reached at the meeting between Messrs Rowley and Christian on 23 September 2021, raises questions of fact and credibility that cannot be resolved on the basis of affidavit evidence in the context of a summary judgment application. The authorities in this regard are unequivocal.
3.In the circumstances please confirm within seven (7) days that the application for summary judgment will be withdrawn by consent on the basis that costs are reserved. It may be sensible to reconsider mediation since the parties’ respective positions are now clearly identified.

4.We will file an amended statement of claim to specifically plead the settlement agreement, as well as the defamation published wider than to just the NZLS, the media counsel and the partners at Rennie Cox, within the next fourteen (14) days.
5.We reserve the right to produce this letter to the…

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 Bosman v Christian

Details

AGLC: Bosman v Christian [2022] NZHC 861
Case: [2022] NZHC 861
Decision Date: 28 April 2022

CaseChat Overview and Summary

The High Court of New Zealand, Tauranga Registry, was presented with a case involving Hermanus Stephanus Bosman, the plaintiff, and multiple defendants, including Grahame Christian, Paul Antony James Blackman, and others. The primary dispute centred on the costs incurred by the defendants in relation to their interlocutory application for summary judgment and strike out, as well as the steps taken by the defendants up until the filing of the amended pleading by the plaintiff. The court was tasked with determining whether the defendants were entitled to costs under the relevant rules and principles of the High Court.

The legal issues the court had to decide included whether the defendants were the successful parties in their interlocutory application for summary judgment or strike out, given that the plaintiff had replaced the original causes of action with new ones, and whether the plaintiff should bear the costs for the steps taken by the defendants up until the filing of the amended pleading. The court also had to determine the appropriate quantum of costs, if any, to be awarded to the defendants.

The court found that the defendants had succeeded in their interlocutory application as the original causes of action had been replaced. The court ruled that the defendants were entitled to costs in respect of the steps taken in relation to that application, awarding them $8,604 plus disbursements of $50, totalling $8,654. Regarding the costs for the steps leading up to the filing of the amended pleading, the court decided to reserve the question for the determination of the leave application, as the plaintiff needed to seek leave to file causes of action arising since the filing of the original statement of claim.

The court made specific orders, including that the plaintiff was to pay costs to the defendants in respect of the interlocutory application, that the plaintiff file an application for leave to file the new causes of action within 10 working days, and that a joint memorandum be filed within a further 10 working days indicating the next steps in the proceedings. The court's decision provided clarity on the costs issues while allowing for further proceedings to determine the appropriate costs under r 7.77(8) in light of the leave application.

Orders