Dold v Murphy - [2019] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-003226 [2019] NZHC 2102

BETWEEN ROGER MURRAY LORIMER DOLD
First Plaintiff
ROGER MURRAY LORIMER DOLD, PENELOPE ANNE DOLD and
KEVIN DAVID PITFIELD as Trustees of THE DOLD TRUST
Second Plaintiffs

AND PETER JAMES MURPHY
First Defendant
LUBERON NOMINEES LIMITED
Second Defendant
SIENA CONSULTANTS LIMITED
Third Defendant

Hearing: [On the Papers]

Counsel:D J Heaney QC and K B Dillon for the Plaintiffs S O McAnally and N W Coyle for the Defendants

Judgment: 26 August 2019

JUDGMENT OF EDWARDS J

[re Costs]

This judgment was delivered by me on 26 August 2019 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

Counsel: D J Heaney QC, Auckland
K B Dillon, Auckland

Solicitors: Cameron Fleming and Associates Ltd, Auckland Keegan Alexander, Auckland

DOLD v MURPHY [2019] NZHC 2102 [26 August 2019]

[1] In my judgment dated 31 May 2019, I dismissed the plaintiffs’ claim and confirmed that the defendants were entitled to costs.1 The parties have been unable to agree on the quantum of those costs. There are four issues to be determined:

(a)Should band C be allowed for the commencement of a defence and discovery?

(b)Should an uplift be applied for the plaintiffs’ refusal to accept the defendants’ settlement offer dated 6 July 2017?

(c)Should costs be awarded in relation to the application for leave to serve summonses on the witnesses in Australia?

(d)How should the costs of the defendants’ discontinued counterclaim be taken into account?

Should band C be allowed for the commencement of a defence and discovery?

[2] The defendants claim band C for the commencement of their defence, lists of documents and inspections of those documents.

[3] The defendants submit that the statement of claim was lengthy, and it required the defendants to plead to matters harking back to at least 2001. The wide-ranging issues raised in that claim also required the defendants to: compile an initial affidavit of documents comprising 453 open documents, conduct a search of 14,000 files, and list a further 987 open documents, including those held by third parties.

[4] There is some force in the defendants’ submission that the statement of claim contained references to factual matters, many of which were irrelevant to the core issues in dispute. Nevertheless, I do not consider that the time required to plead a defence to those matters, or to provide discovery, required a “comparatively large amount of time” in the circumstances. A “normal amount of time” as provided for in band B is reasonable for these steps.

1 Dold v Murphy [2019] NZHC 1232.

Should an uplift be applied for the plaintiffs’ refusal to accept the defendants’ settlement offer dated 6 July 2017?

[5] On 6 July 2017, the defendants, through counsel, wrote to the plaintiffs’ counsel offering to settle the proceeding with a payment of $1,000 in full and final settlement of all claims.

[6] I do not consider…

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 Dold v Murphy

Details

AGLC: Dold v Murphy [2019] NZHC 2102
Case: [2019] NZHC 2102
Decision Date: 26 August 2019

CaseChat Overview and Summary

Dold v Murphy involved a dispute between Roger Murray Lorimer Dold and others (the plaintiffs) against Peter James Murphy and others (the defendants) concerning claims and counterclaims related to a commercial transaction. The High Court of New Zealand, Auckland Registry, was tasked with determining the costs associated with the litigation, following a previous judgment dismissing the plaintiffs' claim and awarding costs to the defendants.

The court addressed four primary issues regarding the costs: whether band C costs should be allowed for the commencement of a defence and discovery, if an uplift should be applied for the plaintiffs' refusal to accept a settlement offer, if costs should be awarded for an application to serve summonses on Australian witnesses, and how to account for the costs of the defendants' discontinued counterclaim. The court found that band B costs were appropriate for the defence and discovery, and that the settlement offer was not reasonable enough to warrant an uplift for refusal. Regarding the summonses, the court allowed costs on a schedule 2B basis. For the counterclaim, the court applied the Medway rule, discounting the defendants' costs by 10% to account for the plaintiffs' costs related to the counterclaim.

The court concluded that the defendants were entitled to schedule 2B costs and disbursements, with a 10% discount applied to reflect the plaintiffs' costs related to the counterclaim. The plaintiffs were allowed the full costs of filing a statement of defence to the counterclaim, which would be deducted from the defendants' cost award. The costs related to the cost applications were to lie where they fell.

Orders