Dobson v Milloy - [2014] NZHC 2339

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-463-000403 [2014] NZHC 2339

BETWEEN
KERRY BRYAN DOBSON

Plaintiff/Counterclaim Defendant

AND

HUGH MILLOY and HELEN RUTH MILLOY as Trustees of the HUGH MILLOY FAMILY TRUST

First Defendants/Counterclaim Plaintiffs

HUGH MILLOY and HELEN RUTH MILLOY as Trustees of the HELEN MILLOY FAMILY TRUST

Second Defendants/Counterclaim
Plaintiffs

CLUSEVAU HOLDINGS LIMITED Counterclaim Defendant

Hearing: (On the papers)

Appearances:

Paul Dalkie and Greg Stringer for the Plaintiff/Counterclaim

Defendant

Robert Hollyman for the First and Second Defendants/ Counterclaim Plaintiffs

Judgment:

25 September 2014

RESERVED JUDGMENT OF MOORE J [Quantum and Costs]

This judgment was delivered by on 25 September 2014 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

DOBSON v MILLOY & ORS [2014] NZHC 2339 [25 September 2014]

Introduction

[1] On 11 July 2014 I delivered the judgment in these proceedings.1 I made certain findings in respect of the substantive claim.2 Based on those findings I invited counsel to address me as to the quantum owed to Mr Dobson and reserved leave for the parties to apply by way of memorandum for the making of formal
orders. I dismissed the counterclaim.

[2] On the question of costs I invited counsel to confer. I directed that in the event the parties could not reach agreement they would file and serve memoranda on costs relative to the claim and counterclaim. I would then determine costs on the papers.

[3] Counsel have advised that they are unable to agree in relation to either quantum or costs. In that event I now proceed to determine both issues having received counsel’s memoranda.

Affidavit of Shane Hussey

[4] Before dealing with the primary issues there is a preliminary matter which must be decided. In support of the Milloy Trusts’ submissions an affidavit made by Mr Hussey, a chartered accountant who gave evidence in the course of the trial, was filed. Mr Dalkie objects to its admission. He submits the trial is finished. He points out both parties have adduced their evidence and closed their cases. Closing submissions have been delivered. He submits that given the narrowness of the issues which the Court sought further assistance on the affidavit should be removed from the file and Mr Hollyman should re-submit his memorandum without reference to the Hussey evidence.

[5] I am not prepared to take that course for the following reasons:

(a) First, while it is correct I did not specifically invite further evidence on the issue of quantum it is plain from the judgment that in light of

1 Dobson v Milloy [2014] NZHC 1631.
2 At [152].

the factual findings made, assistance from counsel was sought. I did not limit either of the parties in relation to the form of that assistance.

(b) Secondly, I do not accept that as at the end of the hearing on 1 April

2014 the case was closed in such a way that further evidence could not be admitted. The judgment makes it plain that while…

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 Dobson v Milloy

Details

AGLC: Dobson v Milloy [2014] NZHC 2339
Case: [2014] NZHC 2339
Decision Date: 25 September 2014

CaseChat Overview and Summary

The case of Dobson v Milloy and others involved a complex dispute concerning a loan guarantee, the apportionment of debt and interest, and associated costs. The High Court of New Zealand was tasked with determining the quantum of the debt owed by the plaintiff, Kerry Dobson, and the costs associated with the proceedings. The defendants, Hugh Milloy and Helen Ruth Milloy as trustees of two family trusts, contested the plaintiff's claims and filed a counterclaim. The court had to decide on the admissibility of additional evidence, the correct calculation of the debt and interest, and the appropriate allocation of costs.

The court ruled that additional evidence, in the form of an affidavit by a chartered accountant, was admissible as it pertained specifically to the calculation of the debt and interest, areas where the court had sought further assistance. The court determined that Dobson's liability under the guarantee was 17.33% of the total debt and interest, which amounted to $80,096.50. The court also concluded that costs should lie where they fell, neither awarding indemnity costs to the plaintiff nor to the defendants, and rejecting claims for increased costs based on the circumstances of the case.

The final orders of the court were that Dobson was owed $80,096.50 by the Milloy interests and that costs for both the substantive claim and the counterclaim should lie where they fell, with each party bearing their own costs.

Orders