Coote v Murray - [2012] NZHC 3200

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2011-442-000122 [2012] NZHC 3200

BETWEEN COLIN HOWARD COOTE First Plaintiff

ANDKATE LARA COOTE Second Plaintiff

ANDKATCOL INVESTMENTS LIMITED Third Plaintiff

ANDJOHN NOEL MURRAY First Defendant

ANDCHRISTOPHER JOHN ROYDS Second Defendant

ANDGENE EDWARD COOPER Third Defendant

ANDDANIEL JOHN WILLIAM HUNT Fourth Defendant

ANDWEST YATES Fifth Defendant

ANDFLETCHER VAUTIER MOORE TRUSTEES LIMITED
Sixth Defendant

Hearing: 28 November 2012 (Heard at Nelson)

Appearances: A R J Bowers for Applicant (Third Defendant)
D Kalderimis for Respondents (First Plaintiff and Third Plaintiff) (Other counsel excused)

Judgment: 28 November 2012

ORALJUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to security for costs]

COOTE V MURRAY HC NEL CIV-2011-442-000122 [28 November 2012]

Introduction

[1] The plaintiffs, in 2005, made some substantial investments which led to losses of $470,000 principal. By this proceeding they seek from six defendants recovery of those sums together with interest and general damages and costs.

[2] One of the six defendants, Mr Cooper, applies for an order for security of costs against the first and third plaintiffs, Mr Coote and Katcol. Mr Coote and Katcol say that the application filed in the shadow of trial (to commence 29 April
2013) is egregiously late and should be dismissed on that ground alone. For reasons

I will come to, I agree with them.

[3] Mr Coote and Katcol says that the application should also be dismissed on other grounds. They say:

(a) The second plaintiff, Mr Coote’s wife is jointly liable with her co- plaintiffs in relation to the earlier causes of action for any costs award and on all causes of action, if unsuccessful, is likely to have a joint costs order against her. In the absence of suggestion that Mrs Coote would be unable to pay Mr Cooper’s costs, the application lacks merit.

(b) The threshold test under High Court Rule 5.45 – Mr Coote’s and

Katcol’s inability to pay costs – is not made out on the evidence.

(c) An award of costs would be unjust having regard first to Mr Coote’s bona fide and meritorious claim and, secondly, to the fact that Mr Coote’s and Katcol’s weakened financial position was caused by the very conduct of the defendants which is the subject of this litigation.

I have summarised what are grounds set out in different detail in Mr Kalderimis’s

submissions.

[4] Had I not been finding for the respondents on the delay ground alone, I would likely have found for them on a combination of the first and second additional points which I have just referred to. It is therefore unnecessary that I make any findings particularly in relation to the merits and the causation issues raised by the third ground as those matters will fall for determination at trial. It is appropriate that I not make findings in relation to them.

Delay

[5] The relevant chronology is this:

18 March 2011 – this proceeding was filed

13 May 2011 – Mr Cooper files his defence

10 June 2011 – the Court directs that…

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 Coote v Murray

Details

AGLC: Coote v Murray [2012] NZHC 3200
Case: [2012] NZHC 3200
Decision Date: 28 November 2012

CaseChat Overview and Summary

The plaintiffs, Colin Howard Coote and Katcol Investments Limited, seek recovery from six defendants of losses amounting to $470,000. The third defendant, Gene Edward Cooper, has applied for an order for security for costs against the plaintiffs. The plaintiffs argue that the application is late and should be dismissed on this ground alone, and further argue that the application should be dismissed because of the joint liability of the second plaintiff, the inability of the plaintiffs to pay costs, and the unjustness of awarding costs given the circumstances. The court found that the application was grossly late, as security had been identified as an issue as early as June 2011, and that security had been resolved as between the plaintiffs and another defendant on 3 August 2011. The court found that the application was also unsuccessful on the additional grounds that the application had not been made as soon as the defendant could reasonably have become aware of the plaintiff's likely inability to meet costs, and that the application had caused prejudice to the plaintiffs by distracting them in the midst of preparing for trial. The court also found that the application for security was not made against the second plaintiff, and that this was a relevant consideration. The court dismissed the application and ordered that the third defendant pay the plaintiffs' costs associated with the application on the basis of a 2B award together with an uplift of 25 per cent. There is a certificate for the reasonable costs of travel and accommodation of counsel.

Orders