Legal Research
Cases
Detection Services Ltd v Pickering

Detection Services Ltd v Pickering

Case [2019] NZHC 638 29 March 2019

Settlement Negotiations

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-003135

[2019] NZHC 638

BETWEEN
DETECTION SERVICES LIMITED

First Plaintiff

DETECTION SOLUTIONS LIMITED
Second Plaintiff

DETECTION SERVICES PTY LIMITED
Third Plaintiff

DETECTION SOLUTIONS PTY LIMITED
Fourth Plaintiff

STEPHEN CARL JOHN SIMMONS

Fifth Plaintiff

AND

CHRISTOPHER LORRAINE PICKERING

First Defendant

AQATAR LIMITED
Second Defendant

JAKE VAN DER PEYL

Third Defendant

Hearing: On the papers

Appearances:

M Corlett QC and R Butler for the Plaintiffs

A Barker QC and J Grimmer for the Defendants

Judgment:

29 March 2019

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Friday, 29 March 2019 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

DETECTION SERVICES LIMITED v PICKERING [2019] NZHC 638 [29 March 2019]

Introduction

[1] On 14 December 2018, I gave judgment dismissing the plaintiffs’ claim. I also dismissed the defendants’ counterclaim. I directed that costs on a 2B basis should follow in the case of both the plaintiffs’ claim and the defendants’ counterclaim. I also directed that if the parties are unable to agree memoranda should be filed by 31 January 2019. The parties have been unable to agree.

The law

[2] When a claim and counterclaim both fail, each party is in principle allowed the costs of defeating the other’s claim. This principle is subject to the proviso that where the failed claim and counterclaim both involved common evidence an apportionment of costs is generally required.

[3] The approach taken by Kós J in N-Tech Ltd v Abooth Ltd is that where there is evidence common to both the claim and counterclaim,1 the Court will allow the defendant the costs of defeating the claim as if there had been no counterclaim, and then allow the plaintiff only the extra costs occasioned by the counterclaim.

Settlement negotiations

[4] The parties tried to settle this dispute between June and September 2017. I am advised that in basic terms, there was an agreement in principle to what could be termed a “walk away” settlement. The sole remaining issue was over what would happen to the leak detection system physically built and paid for by the defendants. The fifth plaintiff, Mr Simmons, said he wanted the equipment. The first defendant, Mr Pickering, said he had no objection to Mr Simmons having the equipment, but some payment should be made for it. The parties agreed in principle to a payment of
$20,000 for the equipment. A concluded agreement could not however be reached. Negotiations broke down over exactly what equipment would be transferred and other subsidiary terms of any settlement.

1 N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [144]-[148].

[5] The defendants confirmed at the end of the settlement negotiations that they would settle the claim on the following basis:
Mr Pickering’s position is that Mr Simmons wants the equipment that Mr Pickering paid to produce, then he should pay something for that. So he is prepared…

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 Detection Services Ltd v Pickering

Details

AGLC: Detection Services Ltd v Pickering [2019] NZHC 638
Case: [2019] NZHC 638
Decision Date: 29 March 2019

CaseChat Overview and Summary

In Detection Services Limited v Pickering, the plaintiffs, Detection Services Limited, Detection Solutions Limited, Detection Services Pty Limited, Detection Solutions Pty Limited, and Stephen Carl John Simmons, brought claims against the defendants, Christopher Lorraine Pickering, Aqaatar Limited, and Jake Van Der Peyl. The plaintiffs sought relief for breach of fiduciary duty, unjust enrichment, and breach of contract. The defendants counterclaimed for a declaration that no fiduciary relationship existed between the parties, and for an order that the plaintiffs deliver to the defendants a leak detection system that had been paid for by the defendants. The High Court dismissed both the plaintiffs’ claims and the defendants’ counterclaim. The Court was required to determine who should bear the costs of the proceedings. The plaintiffs argued they were the successful party because they succeeded in establishing the existence of a fiduciary relationship and breached fiduciary duty, and they successfully defended the counterclaim. The defendants argued they were the successful party, and that the plaintiffs’ claims were without merit and they unreasonably rejected a settlement offer. The Court held that the defendants were the successful party and should be awarded costs for the proceedings. The Court held that the plaintiffs’ claims were not so lacking in merit as to justify an uplift in costs, and the settlement offer should not be taken into account in fixing costs. The Court held that the trial was not complex enough to warrant an increase in costs for preparation for trial. The Court held that an uplift of 25 per cent was justified because the plaintiffs unreasonably rejected a settlement offer. The Court held that the defendants were entitled to recover the costs of their expert witness. The Court held that second counsel was not necessary for the proceeding. The Court awarded the defendants costs of $58,537.50 (2B costs not including costs for second counsel, with a 25 per cent uplift) and disbursements of $48,525. The Court declined to award the plaintiffs costs for the counterclaim.

Orders