Colville v Colville - [2024] NZHC 861

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2021-418-17

[2024] NZHC 861

BETWEEN
MATHEW ROBERT COLVILLE

Plaintiff

AND

ADAM KEITH COLVILLE

First Defendant

PETER JONATHON BLIGHT

Second Defendant

Hearing: On the papers

Appearances:

A R B Barker KC and H P Short for Plaintiff First Defendant in Person

A D Marsh for Second Defendant

Date:

19 April 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 19 April 2024 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

COLVILLE v COLVILLE [2024] NZHC 861 [19 April 2024]

[1] The plaintiff, Mathew Colville (Mathew), was successful in his claim of breach of a restraint of trade against the first defendant, his brother Adam Colville (Adam). The second defendant, Peter Blight (Peter), was also found liable for having knowingly induced and encouraged Adam to breach the restraint. Judgment was entered against both defendants in the sum of $252,000 (payable in equal amounts), together with interest to be calculated from the date of judgment. Adam and Peter were also found liable to pay Mathew’s costs on a 2B basis in equal shares.1

[2] Following delivery of the judgment, Mathew filed a memorandum attaching a schedule of proposed costs, calculated on a 2B basis, in the total sum of $152,134.60. The Court was advised that Mathew had written to each of the defendants attaching the costs schedule and inviting any comment. Adam, in reply, advised that he would await the Court’s order and advice from “other lawyers”, which I interpret to be Peter’s solicitors. For his part, Peter provided no formal response to Mathew directly but has since filed submissions in response to Mathew’s memorandum. Various aspects of Mathew’s schedule of proposed costs are disputed.

[3] In response to an invitation from the Court to file submissions regarding the claimed costs, Adam advised that, as at trial, he remains unrepresented. He does not consider he is in a position to comment “on what is correct and what’s not”. However, Adam did raise an objection to costs associated with the disclosure of Hammer Down Developments Ltd’s (Hammer Down) documents, as he maintained “they had nothing to do with the restraint”. I will address that issue and Peter’s objections in turn.

Disputed costs

[4] Peter acknowledges that costs have been awarded against the defendants on a 2B basis. However, he disputes a number of the items listed in the schedule of costs claimed by Mathew.

1 Colville v Colville [2023] NZHC 2659.

Non-party discovery

[5] Mathew claims his costs in respect of an interlocutory application for non-party discovery. Peter argues the application did not result in any orders being made and effectively lapsed. It is therefore submitted no costs are recoverable, nor can the filing fee for this application be claimed for the disbursement.

[6] The application involved Mathew seeking non-party discovery from the national franchise owner, Stonewood Homes NZ Franchisor Ltd (Stonewood Homes NZ).…

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 Colville v Colville

Details

AGLC: Colville v Colville [2024] NZHC 861
Case: [2024] NZHC 861
Decision Date: 19 April 2024

CaseChat Overview and Summary

The case of Colville v Colville involves a claim by Mathew Colville against his brother Adam Colville and Peter Blight for breach of a restraint of trade. The High Court of New Zealand, Greymouth Registry, was tasked with determining the legality of the defendants' actions and subsequently awarding costs. The court found both Adam and Peter liable for breaching the restraint and ordered them to pay damages and costs to Mathew.

The legal issues before the court included the validity of the restraint of trade, the extent of the defendants' liability, and the appropriateness of the costs claimed by Mathew. The defendants contested certain items in the costs schedule, arguing that some were not recoverable or were excessive. The court had to decide whether the costs claimed were reasonable and necessary, taking into account the nature and complexity of the proceedings.

In its judgment, the court addressed several objections raised by the defendants. It found that certain costs associated with an interlocutory application for non-party discovery were not recoverable as the application did not result in any formal outcome. Regarding the application for an interim injunction, the court ruled that Mathew was entitled to recover his costs since the consent orders largely achieved what was sought. The court also made adjustments to the claimed costs, reducing the amount for preparation time, disallowing the allowance for second counsel, and correcting the hearing fee claim. The court concluded that Mathew was entitled to costs on a 2B basis, amounting to $87,115.50, and disbursements of $52,937.60, payable by the defendants in equal shares.

The final orders of the court reflect the adjustments made to the costs claimed by Mathew, ensuring the defendants pay their share of the awarded costs and disbursements.

Orders