Daisley v Ark Contractors Limited - [2021] NZHC 2780

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2015-404-002799

[2021] NZHC 2780

BETWEEN
M J DAISLEY

First Plaintiff

SDD LIMITED
Second Plaintiff

AND

ARK CONTRACTORS LIMITED

First Defendant

P G & K E KELLER
Second Defendants

THOMSON WILSON LAW (a firm)

Third Defendant

Continued overleaf…

Hearing: On the papers

Appearances:

E Smith for MJ Daisley, SDD Limited, Action Fencing Limited and HPL Distribution Limited

J Browne for Ark Contractors, PG and KE Keller, PG Keller and KE Keller and TW Trustees 2008 Limited

Judgment:

18 October 2021

COSTS JUDGMENT OF WALKER J

This judgment was delivered by me on 18 October 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

M J DAISLEY v ARK CONTRACTORS LIMITED [2021] NZHC 2780 [18 October 2021]

CIV-2016-488-000041

BETWEEN

ARK CONTRACTORS LIMITED
Plaintiff

AND

M J DAISLEY

First Defendant

ACTION FENCING LIMITED

Second Defendant

HPL DISTRIBUTION LIMITED

Third Defendant

CIV-2016-404-002176

BETWEEN

ACTION FENCING LIMITED
First Plaintiff

HPL DISTRIBUTION LIMITED

Second Plaintiff

M J DAISLEY
Third Plaintiff

AND

ARK CONTRACTORS LIMITED

First Defendant

P G & K E KELLER

Second Defendant

P G KELLER, K E KELLER & T W TRUSTEES 2008 LIMITED

Third Defendants

Introduction

[1] This judgment determines costs in respect of three proceedings between the Daisley interests on the one hand and the Keller interests on the other.1 The backdrop to all three proceedings was a failed business arrangement between Mr Daisley and the Kellers interests. The fall out between the parties led to acrimonious disputes over the course of a decade which finally reached trial in 2019 and 2020.

[2] In the first proceeding (CIV-2015-404-2799), Mr Daisley and SDD Limited claimed against Ark Contractors Limited (Ark), the Kellers and the law firm, Thomson Wilson.2 I refer to these as the Daisley proceedings. Mr Daisley succeeded in the High Court against Ark and the Kellers on some causes of action. The judgment was overturned by the Court of Appeal.3

[3] In the second proceedings (CIV-2016-488-41), Ark succeeded in all but a minor aspect of its claims against Mr Daisley, HPL Distribution Limited and Action Fencing Limited (Action Fencing). I refer to these as the Ark proceedings.

[4] In the third proceeding (CIV-2016-404-2176), Action Fencing’s claims were dismissed save for a relatively small sum of just over $14,000 against one of the three defendants. All of the claims by Mr Daisley and HPL Distribution Limited were dismissed. I refer to these as the Action Fencing proceedings.

[5] An appeal by the Daisley interests in the Action Fencing proceeding was dismissed by the Court of Appeal in its entirety. The Court of Appeal allowed the appeal by the Daisley interests in the Ark proceeding to a trifling extent, namely in the sum of $577.50.4

1 The Daisley interests comprise Mr Daisley, SDD Limited, Action Fencing Limited, and HPL Distribution Limited. The Keller interests comprise the Kellers in their personal capacity, Ark Contractors Limited and the trustees of the Keller Family Trust.

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 Daisley v Ark Contractors Limited

Details

AGLC: Daisley v Ark Contractors Limited [2021] NZHC 2780
Case: [2021] NZHC 2780
Decision Date: 18 October 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Walker J delivered a costs judgment in three interrelated proceedings between the Daisley and Keller interests. The proceedings stemmed from a failed business arrangement between the parties. The Keller interests claimed costs in all three proceedings, seeking an uplift of 10 per cent in the Daisley proceeding and 50 per cent in the Action Fencing proceeding. The Daisley interests argued that costs should lie where they fall, and challenged the claim for increased costs on various grounds. The court assessed the scale costs and disbursements claimed by the Keller interests and found them to be properly and appropriately claimed. The court was not persuaded by the grounds argued by the Daisley interests and found that the Keller interests were justified in seeking an uplift in costs. The court awarded costs on a 2B basis, with a 10 per cent uplift in the Daisley proceeding and a 50 per cent uplift in the Action Fencing proceeding. The court also awarded costs in the Ark proceeding to Ark Contractors Limited, finding that it was successful in all but a minor aspect of its claims. The court directed that any security for costs held by the court in favour of the Keller interests be paid out in part payment of the orders.

The court's decision provides the parties with sufficient guidance to finalise quantum, and any ongoing dispute may be referred to the Registrar. The court exercised its discretion in accordance with the relevant rules and principles, taking into account the success achieved by the parties and the conduct of the proceedings. The decision highlights the importance of predictability in the costs regime and the need for parties to act in a commercially realistic manner in resolving disputes. The court's approach to costs in the Action Fencing proceeding, in particular, demonstrates the need to balance the principle of awarding costs to the successful party with the need to do justice between the parties.

Orders