Chevin v Valmont - [2022] NZHC 2057

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1547

[2022] NZHC 2057

BETWEEN
PETER LOUIS CHEVIN

Plaintiff

AND

CLARK VINCENT VALMONT

First Defendant

TIMOTHY LAIRD EDNEY and THE GOLDEN BELT MINING COMPANY LIMITED

Second Defendants

Hearing: On the papers

Counsel:

No appearance for the Plaintiff

S Lowery for the First Defendant
D Chisholm QC and M Lenihan for the Second Defendants

Minute:

18 August 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 18 August 2022 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Hucker & Associates, Auckland Greenwood Roche, Auckland
Brown Partners, Auckland

Bankside Chambers, Auckland D Chisholm QC, Auckland
M Lenihan, Auckland

CHEVIN v VALMONT [2022] NZHC 2057 [18 August 2022]

Introduction

[1] The first and second defendants apply for an award of costs against the plaintiff, Mr Peter Chevin, following Mr Chevin’s proceedings being struck out.

[2] In a judgment issued on 9 February 2022, I made unless orders allowing Mr Chevin until 9 April 2022 to pay security for costs, failing which the proceeding would automatically be struck out.1 Mr Chevin did not pay security, so the proceedings were struck out as ordered.

Costs claimed

[3] The first defendant, Mr Clark Valmont, now seeks an award of costs on a 2B basis of $7,648 plus disbursements of $660 for a total of $8,308.

[4] The second defendants, Mr Timothy Edney and The Golden Belt Mining Company Limited, seek 2B costs of $7,648 plus disbursements of $160 for a total of
$7,808.

[5] The costs sought by both defendants are the costs and disbursements in the proceedings that are not covered by the two earlier costs awards made in the defendants’ favour on 18 August 2021 and 7 March 2022.

[6] The 18 August 2021 costs judgment was in respect of the defendants’ strike out application and the plaintiff’s application to vary the consent order in respect of security for costs. The defendants were awarded costs on a 2B basis, in favour of the first defendant in the amount of $7,528.50 plus disbursements of $550 and in favour of the second defendant in the amount of $5,616.50 plus disbursements of $110.2

[7] The 7 March 2022 costs minute was in respect of the plaintiff’s application for leave to appeal and the defendants’ joint application for strike out. The defendants were awarded costs by consent on a 2B basis totalling $10,635.50 in favour of the first

1 Chevin v Valmont [2022] NZHC 134.
2 Chevin v Valmont [2021] NZHC 2161.

defendant and $11,113.50 plus disbursements of $660 in favour of the second defendant.3

Plaintiff’s position

[8] Both defendants have invited Mr Chevin’s solicitor to comment on the amounts now sought. No response was received and no memorandum has been filed by or on behalf of Mr Chevin.

[9] I consider that sufficient time has been given for any response by the plaintiff and…

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 Chevin v Valmont

Details

AGLC: Chevin v Valmont [2022] NZHC 2057
Case: [2022] NZHC 2057
Decision Date: 18 August 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Chevin v Valmont involves the plaintiff, Peter Louis Chevin, and two sets of defendants, Clark Vincent Valmont and Timothy Laird Edney, along with The Golden Belt Mining Company Limited. The dispute originated from proceedings that were ultimately struck out due to the plaintiff's failure to pay security for costs as previously ordered. The first and second defendants are now seeking an award of costs against the plaintiff for the expenses incurred due to the struck-out proceedings.

The legal issues before the court involved determining the appropriate amount of costs to be awarded to the defendants based on their applications. The first defendant, Clark Valmont, claimed costs of $7,648 plus disbursements of $660, while the second defendants, Timothy Edney and The Golden Belt Mining Company Limited, claimed costs of $7,648 plus disbursements of $160. Both sets of defendants' claims included costs and disbursements that were not covered by previous costs awards made in their favour.

The court reviewed the schedules of costs submitted by the defendants and found the costs claimed by the first defendant to be appropriately claimed. However, the court noted that the costs claimed by the second defendants included an item for a notice of opposition that was filed in a separate proceeding, for which costs had already been ordered. Therefore, the court reduced the costs awarded to the second defendants by the amount claimed for this step, totalling $1,434, bringing their claim to $6,214. The court also reserved the right for the second defendants to apply for further costs regarding this notice of opposition if applicable.

The court ordered that the plaintiff is to pay the first defendant $8,308 in total costs, and to the second defendants $6,264 in total costs. The court also reserved leave for the second defendants to apply for further costs in relation to the notice of opposition if warranted.

Orders