Corrick v Silich - [2017] NZHC 2033

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001805 [2017] NZHC 2033

BETWEEN
DAVID CORRICK

First Plaintiff

STEVEN MITCHELL Second Plaintiff

DAVID PRALONG Third Plaintiff

PAUL STENT Fourth Plaintiff

MATTHEW WILCOCK Fifth Plaintiff

AND

ROBERT SILICH First Defendant

…/contd

Hearing: On the papers

Judgment:

24 August 2017

JUDGMENT OF WYLIE J [COSTS]

This judgment was delivered by Justice Wylie
On 24 August 2017 at 10.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: Amicus Law, Auckland
Hollister Jones Lellman, Tauranga/D Marriott, Auckland

CORRICK v SILICH [2017] NZHC 2033 [24 August 2017]

/contd…..

CHRIS SNELSON Second Defendant

GLENN MCCREADY Third Defendant

FRANK PARKER Fourth Defendant

BRETT EMENY Fifth Defendant

DARRYL MCEVEDY Sixth Defendant

ALISTAIR RUSSELL Seventh Defendant

ALISTAIR SCOTT Eighth Defendant

BRYAN LOCKIE Ninth Defendant

DOUG MOULIN Tenth Defendant

MICHAEL JENKINS Eleventh Defendant

KEN MULGREW Twelfth Defendant

BRIAN STEWART Thirteenth Defendant

BLAIR O’BRIEN
Fourteenth Defendant

DARYL HONE Fifteenth Defendant

ANDREW GORMLIE Sixteenth Defendant

Introduction

[1] I refer to my judgment of 14 July 2017. I found the plaintiffs had failed in each of the causes of action advanced by them, and I dismissed their claims. I also held that the first to fifth defendants were entitled to their reasonable costs and disbursements, and invited the parties to try and agree costs.

[2] Counsel advise that they have been unable to agree costs. They have filed memoranda.

[3] The first to fifth defendants say they have incurred increased and unnecessary costs, defending proceedings that could never have succeeded, and which have resulted almost entirely from a situation created by the misconduct of the first plaintiff, Mr Corrick. They say that even if the matter had been correctly pleaded and efficiently pursued, the plaintiffs were never entitled to the relief claimed. They argue that the plaintiffs, by issuing proceedings against all syndicate members other than themselves, and by singling out the first five defendants, must be regarded as having acted vexatiously. They seek indemnity costs, in the total sum of $79,326.49 (inclusive of GST). In the alternative, they seek costs on a 2B basis, together with an uplift. They accept that the costs on some Schedule 3 items should properly be fixed on a 2A basis; they seek preparation costs in relation to the first hearing, which had to be vacated because of the late filing of an amended statement of claim by the plaintiffs.

[4] The plaintiffs say that there is no proper basis in fact or in law for either indemnity costs, or increased costs. They argue that the first to fifth defendants have not sought scale costs, and that therefore there is no jurisdictional basis to award them scale costs in the alternative. In any event, they assert that the total costs claimed are excessive, and that their costs liability should be no more than $40,000. They also argue that any award of costs should be set off against monies they say are owed to them by the syndicate. They claim costs in relation…

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 Corrick v Silich

Details

AGLC: Corrick v Silich [2017] NZHC 2033
Case: [2017] NZHC 2033
Decision Date: 24 August 2017

CaseChat Overview and Summary

In Corrick v Silich, the plaintiffs, a group of aircraft syndicate members, sued the defendants, also syndicate members, for breach of fiduciary duties and other claims arising from the sale of a syndicate-owned aircraft. The High Court of New Zealand dismissed the plaintiffs' claims and awarded the defendants their reasonable costs and disbursements. The defendants subsequently sought indemnity costs or, in the alternative, increased costs on a 2B basis, arguing that the plaintiffs' actions were vexatious and led to unnecessary costs. The plaintiffs opposed the costs application, arguing that there was no basis for increased costs and that their costs liability should be limited to $40,000.

The Court considered the plaintiffs' poor pleadings, numerous false starts, irrelevant and prejudicial evidence, and numerous arguments not pleaded or irrelevant. Despite these issues, the Court was not persuaded that an award of indemnity costs was appropriate, finding that the plaintiffs' actions were not vexatious. However, the Court awarded increased costs on a 2B basis, increased by 50%, for reasons including the poorly pleaded matter, untenable damages claim, failure to mitigate damages, and the plaintiffs' failure to appreciate that they had to establish a contract. The Court also awarded the defendants preparation costs for the vacated first trial.

The Court rejected the plaintiffs' argument that their costs liability should be set off against monies owed to them by the syndicate, as there was no finding in regard to these assertions. The Court also declined to award costs in relation to an interlocutory application for an injunction, which was withdrawn. The Court ordered the defendants to provide an itemised list of any disbursements claimed and directed the parties to refer any difficulty in calculating the costs to the Registrar.

In conclusion, the Court awarded costs against the plaintiffs and in favour of the first to fifth defendants on a 2B basis, increased by 50%, with certain costs calculated on a 2A basis and additional costs for preparing for the vacated first trial. The plaintiffs' liability for the costs was joint and several.

Orders