Clayton v Jackson

[2020] NZHC 3212

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-001729

[2020] NZHC 3212

UNDER

the Receiverships Act 1993

BETWEEN

MARK ARNOLD CLAYTON

Plaintiff

AND

NEALE JACKSON, BRENDAN JAMES GIBSON AND GRANT GRAHAM (of CALIBRE PARTNERS)

First Defendants

AND

BANK OF NEW ZEALAND

Second Defendant

AND

PAUL ARNE PEDERSEN

Third Defendant

AND

WADE STEVEN GLASS

Fourth Defendant

Hearing:

On the papers

Appearances:

No appearance for the Plaintiff

S M Hunter QC & J Marcetic for the First Defendants

Z G Kennedy & A C van Ammers for the Second Defendant T Cooley for the Third Defendant

C A Murphy for the Fourth Defendant

Judgment:

7 December 2020

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 07 December 2020 at 2.15pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

CLAYTON v JACKSON [Costs Judgment] [2020] NZHC 3212 [7 December 2020]

Introduction

[1]        On 9 October 2020 I delivered my reasons for declining to grant the interim injunction sought by the plaintiff, Mr Clayton.1

[2]        At [53] of those reasons, in an attempt to encourage agreement on costs, I expressed my provisional view that each defendant was entitled to costs, at category 2, with Band C for the preparation of affidavits, Band B for the preparation of submissions, and an allowance for any second counsel.

[3]        The parties did not reach agreement on costs. In accordance with the timetable that I set, the defendants filed a memorandum on costs on 28 October 2020. The defendants sought costs in accordance with my provisional view. The first defendants also sought costs for preparing the costs memorandum, on the basis that the plaintiff had failed to engage with a reasonable offer to resolve costs.

[4]        Under the timetable the plaintiff was to file a memorandum on costs by 11 November 2020. The plaintiff has not filed any memorandum.

[5]        On 16 November 2020 the defendants filed a further memorandum noting that there had been nothing from the plaintiff, and requesting that the Court proceed to award costs in accordance with their earlier memorandum of 28 October 2020.

[6]        Unfortunately there was a delay in the defendants’ memoranda reaching me. I have now read them.2 The defendants’ memoranda reinforce me in the provisional view that I expressed. The defendants were each successful and therefore are entitled to costs. Category 2 is appropriate. Band C is appropriate for the defendants’ preparation of their oppositions and affidavits. These were detailed, reflecting the seriousness of the allegations that the plaintiff made in his injunction application. The defendants also had to respond under urgency. Band B is appropriate for preparation of the submissions.

1      Clayton v Jackson [2020] NZHC 2666.

2      I have today received, after preparing this costs judgment, a further memorandum from the defendants dated 27 November 2020. In that memorandum the defendants seek further orders that are outside the scope of this judgment.

[7]        Because the first defendants have been put to the expense of preparing submissions for costs, and because the award of costs reflects the provisional view that I expressed in my judgment, I also accept the first defendants are entitled to 2B costs on their costs submissions, by analogy to step 11 in Sch 3.

[8]        Accordingly, I award costs to each defendant against the plaintiff in the amounts set out in the defendants’ memorandum dated 28 October 2020, namely:

(a)$20,783.50 to the first defendants.

(b)$19,827.50 to the second defendant.

(c)$19,230 to the third defendant.

(d)$19,230 to the fourth defendant.

Campbell J

Solicitors/Counsel:

McVeagh Fleming, Auckland Chapman Tripp, Auckland Brookfields, Auckland

Kitchener Chambers, Auckland

Stephen Hunter QC, (Shortland Chambers), Auckland A C van Ammers, Barrister, Auckland

Z G Kennedy, Barrister, Auckland C A Murphy, Barrister, Auckland