Chevin v Valmont - [2021] NZHC 2161

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1547

[2021] NZHC 2161

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

Appearances:

No appearance for the Plaintiff

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

Judgment:

18 August 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 18 August 2021 at 4.30pm 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

CHEVIN v VALMONT [2021] NZHC 2161 [18 August 2021]

Introduction

[1] By my judgment dated 18 December 2020, I dismissed the defendants’ application to strike out these proceedings and the plaintiff’s application to vary the consent order made in respect of security for costs.

[2] The defendants sought costs on the application whether successful or not because the plaintiff had caused unnecessary expense in failing to comply with the consent order made in relation to security for costs. In the defendants’ submission, even on the plaintiff’s best case, he was seeking an indulgence by applying for a variation of an order that he freely consented to when represented by senior counsel.

[3] Furthermore, the plaintiff only consented to the security for costs order after a joint application with significant affidavit evidence was filed by the defendants and after leave was granted for the plaintiff to file his opposition out of time.

[4] In the special circumstances of this case I directed that costs were to be paid to the defendants on a 2B basis in respect of both applications, with memoranda to be filed if costs could not be agreed between the parties.

[5] A joint memorandum was filed on behalf of the defendants on 3 February 2021 seeking costs as the parties had been unable to agree. The memorandum recorded that the defendants had made a proposal to the plaintiff but had received no response.

[6] On 9 February 2021, the plaintiff filed an application for leave to appeal my judgment dated 18 December 2020. However, no memorandum in response to the defendants’ costs memorandum was filed.

[7] On 23 February 2021, counsel for the plaintiff applied for leave to withdraw as solicitor on the record.

[8] I issued a Minute on 1 March 2021 directing the plaintiff to file a memorandum confirming:

(a)whether the plaintiff would be acting for himself or if an alternative solicitor would be acting and including the address for service;

(b)whether the plaintiff intended to proceed with the application for leave to appeal my decision of 18 December 2020; and

(c)whether the plaintiff intended to file a memorandum in response to the defendants’ joint memorandum on costs.

[9]Since then no memorandum has been filed by or on behalf of…

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 [2021] NZHC 2161
Case: [2021] NZHC 2161
Decision Date: 18 August 2021

CaseChat Overview and Summary

The case of Chevin v Valmont involves a dispute where Peter Louis Chevin, the plaintiff, had previously consented to a security for costs order. The defendants, Clark Vincent Valmont, Timothy Laird Edney, and The Golden Belt Mining Company Limited, sought costs due to the plaintiff's failure to comply with the security for costs order. The plaintiff did not appear at the hearing, nor did he file a memorandum in response to the defendants' costs memorandum. Despite the plaintiff filing an application for leave to appeal the earlier judgment, he did not address the application for costs. The court examined the schedule for costs submitted by the defendants and determined that most of the claimed costs were payable, except for those related to obtaining judgment without appearance. The court ordered the plaintiff to pay costs to the first defendant in the amount of $7,528.50 plus disbursements of $550, and to the second defendant in the amount of $5,616.50 plus disbursements of $110. The court discounted the costs claimed by 0.3 of a day for each defendant due to the overlap with costs already claimed for appearance at the hearing.

Orders