Curin v Kane

[2024] NZHC 1617

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1545

[2024] NZHC 1617

BETWEEN

PAUL RICHARD CURIN

and
MICHAEL REX CURIN
Plaintiffs

AND

PAUL KANE,

JOANNE ELIZABETH CURIN and JOHN RICHARD CURIN

as trustees of the ELIZABETH CURIN TRUST

First Defendants

PAUL KANE and
JOANNE ELIZABETH CURIN

as trustees of the John Curin Trust Second Defendants

JOANNE ELIZABETH CURIN

as trustee of the Elizabeth Curin Trust and John Curin Trust

Third Defendant

On the papers:

19 June 2024

Appearances:

Vanessa Bruton KC / P McKendrick for the Plaintiffs

J W A Johnson / J L Butcher for the First and Second Defendants

Judgment:

19 June 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 19 June 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

CURIN v KANE [2024] NZHC 1617 [19 June 2024]

Introduction

[1]        On 14 May 2024 Gault J made an order by consent for the appointment of a litigation guardian for Mr John Curin (Mr Curin), one of the first defendants.

[2]        At [4](b) of Gault J’s order, he ordered that in the event costs between the parties cannot be agreed, each of the parties was to file a memorandum as to costs and the decision on costs would then be made on the papers. In accordance with that order, counsel for the plaintiffs filed a memorandum dated 29 May 2024, counsel for the first and second defendants filed a memorandum in reply dated 5 June 2024 and counsel for the plaintiffs filed a memorandum of reply to that reply dated 12 June 2024.

Procedural history

[3]        On 30 November 2023 the Court issued a minute and at [3] of that minute made an order, by consent, that if the appointment of a litigation guardian for Mr Curin could not be resolved by agreement, any application and affidavits in support were to be filed by 7 December 2023, any notices of opposition and affidavits in support were to be filed by 14 December 2023.

[4]        The plaintiffs filed an application for appointment of a litigation guardian for Mr Curin on 8 December 2023. The first and second defendants did not file any opposition by 14 December 2023 and the application proceeded unopposed until Gault J made an order by consent on 14 May 2024.

[5]        The plaintiffs have sought an order for costs against the first defendants on a 2B basis together with disbursements. The first defendants have refused to pay costs.

Plaintiffs’ position

[6]The plaintiffs submit as follows:

(a)it is the first defendants who are the effective unsuccessful party - they declined to consent, requiring the plaintiffs to file the application to comply with the Court- ordered consent timetable, and only thereafter consented. The application ought not to have been necessary;

(b)it was only by a letter from the first defendants’ solicitors to the plaintiffs’ solicitors dated 18 December 2023 that the plaintiffs were advised that Mr Curin had resigned as trustee. That did not affect the need for a litigation guardian and the first defendants’ suggestion that it is now only appropriate to consent, given the correspondence as to discovery obligations, is disingenuous. The application for appointment of the litigation guardian was for the proceedings, which included discovery;

(c)in a letter dated 6 December 2023 from the plaintiffs’ solicitors to the first defendants’ solicitors, it was made clear that discovery would be required in relation to the drafting of Mr Curin’s affidavits and his instructions, notwithstanding that Mr Curin had resigned as a trustee.

[7]        The plaintiffs seek costs on a 2B basis of $4,302.00 together with disbursements of $500.00.

The first defendants’ position

[8]The first defendants submit as follows:

(a)the plaintiffs’ application was not formally opposed by the first defendants and the order was made by Gault J by consent;

(b)at the time the plaintiffs’ application was brought on 8 December 2023, the first defendants did not formally consent to the order in the time- frame set out in the Court’s minute of 30 November 2023 as they were in the process of taking advice as to Mr Curin’s continued involvement

in the proceedings, including his continued role as trustee of the Curin Trusts;

(c)after taking advice and communicating with Mr Curin, on 18 December 2023 the first defendants informed the plaintiffs that Mr Curin had retired from his role of trustee of both the Curin Trusts and the first defendants proposed the application for the appointment of a litigation guardian be withdrawn and the plaintiffs’ claims against Mr Curin should be discontinued;

(d)no response was received by the first defendants to that proposal until 22 February 2024 when the plaintiffs did not agree to the withdrawal of the application and explained their view that a litigation guardian was still required to complete discovery on Mr Curin’s behalf and represent him in any settlement negotiations;

(e)on 20 March 2024 the first defendants replied, agreeing to the appointment of a litigation guardian for Mr Curin. The first defendants, once it became clear that continued discovery of Mr Curin’s files was also a primary issue for the plaintiffs, consented to the application.

[9]        The first defendants’ position is that costs on the application should lie where they fall, on the basis that the first defendants’ actions in not immediately consenting to the application were reasonable as they related primarily to Mr Curin’s role in defending the litigation and the first defendants considered that the application was no longer required.

Result

[10]      I am of the view that the plaintiffs are entitled to an order for costs against the first defendants on a 2B basis, together with disbursements, but reduced by deleting the item set out at [10](c) of counsel for the plaintiffs’ memorandum of 29 May 2024.

[11]      In my view, the application for appointment of a litigation guardian should not have been necessary as it was made clear to the first defendants’ solicitors that the need for appointment of the litigation guardian for Mr Curin applied not only to his role as a defendant in the litigation, but also in relation to discovery obligations. This was made clear before the application was filed. The first defendants say when they realised the point that the litigation guardian was required for discovery, they consented, which indicates that consent should have been given before the application was required.

[12]      As to the deletion of item [10](c) of counsel for the plaintiffs’ memorandum, this is effectively a claim for costs on costs and in my view the first defendants’ behaviour does not justify an award of costs on costs.

Orders

[13]      I order that the first defendants are to pay the plaintiffs the sum of $3,346.00 (being the amount of $4,302.00 sought less $956.00 related to item 10(c)) together with disbursements of $500.00, totalling $3,846.00

…………………………….. Associate Judge Taylor

Solicitors:

Glaister Ennor (Paul McKendrick), Auckland, for the Plaintiffs

LawWorks (George Ireland), Auckland, for the First and Second Defendants

Counsel:
Vanessa Bruton KC, Auckland, for the Plaintiffs

Jeremy Johnson/Josie Butcher, Bankside Chambers, Auckland, for the First and Second Defendants