Clayton v Currie - [2018] NZHC 2544

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2011-409-1178

[2018] NZHC 2544

BETWEEN
VINCENT JAMES CLAYTON

First Plaintiff

LINDA JOYCE WESTBURY
Second Plaintiff

AND

PHILIPPA CURRIE

First Defendant

RAYMOND DONNELLY & CO
Second Defendant

THE CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

THE ATTORNEY-GENERAL

Fourth Defendant

CIV-2013-409-1441

BETWEEN

PETER LLOYD MACHIRUS
First Plaintiff

NADIA MAVANA PELENATO
Second Plaintiff

GARRY GEORGE MORELL
Third Plaintiff

AND

PHILIPPA CURRIE

First Defendant

RAYMOND DONNELLY & CO
Second Defendant

THE CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

VINCENT JAMES CLAYTON v PHILIPPA CURRIE [2018] NZHC 2544 [28 September 2018]

THE ATTORNEY-GENERAL
Fourth Defendant

On the papers:

Counsel:

Plaintiffs in Person

J C Pike QC and S K Barr for Defendants

Judgment:

28 September 2018

JUDGMENT OF CHURCHMAN J (COSTS)

[1] In the Court’s judgment of 30 July 2018, the Court found that each of the plaintiff’s causes of action failed.1 The Court stated that its preliminary view was that, given the apparently impecunious nature of all the plaintiffs, there was little point in making a costs award but, should the defendants wish to pursue such an application, they were to file a memorandum within 10 working days, with the plaintiffs having 10 working days to respond.2

Adjournment of costs

[2] Despite the Court observing that there seemed to be little point in pursuing costs given the financial capacity of the plaintiffs, the defendants have filed an application seeking an award of costs against the plaintiffs. It is worth noting that, if the Crown did not seek a costs award, then this means the costs would have to be borne by the taxpayer. Arguably, the Crown is under an obligation to recover costs in this situation.

[3] The plaintiffs, who are self-represented, have all requested that the issue of costs be adjourned until after the appeal by Mr Machirus to the Court of Appeal.

[4] Under the High Court Rules, the general principle is that “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”.3 The

1 Clayton v Currie [2018] NZHC 1898.
2 At [239].
3 High Court Rules 2016, r 14.2(1)(a).

fact that an appeal has been brought does not change the rights of the parties.4 Although the Courts have a general power to stay execution, this power is not to be abused so as to delay payment.5 Should Mr Machirus’ appeal prove successful, any order as to costs may be set aside. I therefore decline to adjourn the issue of costs until the appeal is heard.

Plaintiffs’ ability to pay

[5] The defendants have acknowledged that Mr Machirus is an undischarged bankrupt and that, with the exception of Mr Clayton, the plaintiffs had applied for legal aid, although only Ms Westbury was successful in doing so, receiving legal aid until the conclusion of the 2016/2017 interlocutories. However, the defendants submit that, in the absence of specific evidence from the plaintiffs as to their current financial circumstances, 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 Clayton v Currie

Details

AGLC: Clayton v Currie [2018] NZHC 2544
Case: [2018] NZHC 2544
Decision Date: 28 September 2018

CaseChat Overview and Summary

The case of Clayton v Currie involved multiple plaintiffs suing various defendants in the High Court of New Zealand. The plaintiffs in the proceeding were Vincent James Clayton, Linda Joyce Westbury, Peter Lloyd Machirus, Nadia Mavana Pelenato, and Garry George Morell. They were suing Philippa Currie, Raymond Donnelly & Co, the Crown Solicitor at Christchurch, and the Attorney-General. The plaintiffs sought damages arising from various causes of action, which the Court found to have failed. The defendants then applied for an award of costs against the plaintiffs.

The primary legal issue before the Court was whether to award costs to the defendants, given the plaintiffs' apparent financial difficulties. The Court considered the plaintiffs' ability to pay, the general principle that the losing party should pay costs, and the precedent that inability to pay does not affect entitlement to costs but is relevant to enforcement.

The Court concluded that despite the plaintiffs' financial difficulties, they were not entitled to have the issue of costs adjourned pending the appeal. The Court acknowledged that the plaintiffs might struggle to pay but found that their financial situation had not changed significantly since the commencement of the proceedings. The Court awarded costs on a 2B basis, dividing the costs amongst the plaintiffs based on their respective shares. The Court also allowed the defendants to seek second counsel but denied the separate claims for preparation for trial for each plaintiff. The Court awarded specific amounts to each plaintiff, reflecting the scale costs and disbursements incurred by the defendants.

In conclusion, the Court awarded costs to the defendants, requiring each plaintiff to pay a specific amount. The Court emphasized that the plaintiffs' financial difficulties would need to be resolved between the parties, and any enforcement of the costs order would be on a principled basis by the Crown.

Orders