EBR Holdings Limited (in liq) v Van Duyn

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2009-090-1560

[2020] NZHC 130

BETWEEN
EBR HOLDINGS LIMITED (IN LIQ)

First Plaintiff

VIVIEN JUDITH MADSEN-RIES AND HENRY DAVID LEVIN
Second Plaintiffs

AND

JOHANNES VAN DUYN (SENIOR) AND GERARDA JACOBA MARIA VAN DUYN

First Defendants

RENE MARINUS VAN DUYN

Second Defendant

Hearing: On the papers

Counsel:

H McKee and S Farnell for the First Plaintiff

H Twomey and N Faulkner for Smith & Partners (non-party)

Judgment:

11 February 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me
on 11 February 2020 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Meredith Connell, Auckland
Robertsons, Auckland

EBR HOLDINGS LIMITED (IN LIQ) v VAN DUYN [2020] NZHC 130 [11 February 2020]

JOHANNES VAN DUYN (JUNIOR)
Third Defendant

JOHANNES VAN DUYN (SENIOR), GERARDA JACOBA MARIA VAN DUYN, RENE MARINUS VAN DUYN AND JOHANNES VAN DUYN (JUNIOR)
Fourth Defendants

SOUTH HEAD TRUSTEES LIMITED
Fifth Defendant

MCLAREN GUISE ASSOCIATES LIMITED
Third Party

[1] The first plaintiff, EBR Holdings Ltd (in liq) (EBR) brought an application for wasted costs against non-party solicitors, Smith & Partners, who had previously acted for the first to third defendants (the van Duyns). I found in favour of EBR in my judgment of 17 December 20191 (but not to the full extent claimed).

[2]I reserved the question of costs.

[3] The Court has now received a joint memorandum of counsel for EBR and Smith & Partners dated 4 February 2020 agreeing on the calculation of costs.

[4] I award costs in favour of EBR against Smith & Partners in the sum of $12,810 in accordance with counsel’s memorandum.

[5]I thank the parties for their cooperation in agreeing costs.

Gordon J

1 EBR Holdings Ltd (in liq) v van Duyn [2019] NZHC 3325.

CaseChat Overview and Summary

EBR Holdings Ltd (in liq) sought wasted costs from Smith & Partners, who had previously acted for the van Duyns, in this proceeding before the High Court of New Zealand. The van Duyns had been defendants in a previous proceeding brought by EBR, which resulted in a judgment in EBR's favour. The Court found in favour of EBR regarding the wasted costs claim, though not to the full extent claimed. The matter proceeded to a consideration of the costs incurred by EBR in pursuing the wasted costs application.

The primary issue for the Court was the determination of the costs to be awarded to EBR from Smith & Partners. The Court was required to consider the agreement between EBR and Smith & Partners regarding the calculation of costs and decide whether to endorse this agreement.

The Court endorsed the agreement between EBR and Smith & Partners, which detailed the calculation of costs to be awarded. The Court awarded costs to EBR in the sum of $12,810, as agreed upon by the parties. The Court acknowledged the cooperation of the parties in reaching an agreement on the costs.

The Court awarded costs in the sum of $12,810 to EBR against Smith & Partners, as agreed upon by the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established