Ebr Holdings Ltd (in liquidation) v McLaren Guise Associates Ltd

[2015] NZHC 2704

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2008 [2015] NZHC 2704

BETWEEN

EBR HOLDINGS LTD (IN

LIQUIDATION) Plaintiff

AND

MCLAREN GUISE ASSOCIATES LTD First Defendant

NIGEL DALE HARRISON Second Defendant

Hearing:	2 November 2015
Counsel:	P Murray for Plaintiff J N Bierre and L G Cox for Defendants
Judgment:	3 November 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 November 2015 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Auckland) for Plaintiff

Morgan Coakle (Auckland) for Defendants

EBR HOLDINGS LTD (IN LIQUIDATION) v MCLAREN GUISE ASSOCIATES LTD [2015] NZHC 2704 [3

November 2015]

Introduction

[1]      On 18 September 2015, the plaintiff applied for leave to appeal to the Court of Appeal my judgment delivered on 21 August 2015.1

[2]      On 24 September 2015, I presided at the first call of the application.  Counsel for the defendants told me that he had not had the opportunity to take instructions and asked for an adjournment for one week to enable instructions to be taken and for a notice of opposition, if any, to be filed.   I said that on the issues which my judgment concerned, and which the plaintiff seeks to take to the Court of Appeal, “I think it is inevitable that leave to appeal will be granted”.

[3]      I directed that the matter be called again in the duty list on 1 October 2015.  I further directed that by that date the defendants would either file a notice of opposition or a memorandum advising that there is no opposition.  In the latter case, the matter could be determined on the papers and appearances excused.

[4]      On  30  September  2015,  counsel  for  the  defendants  filed  a  notice  of opposition to the plaintiff’s application.  The grounds of opposition went directly to the jurisdiction for granting leave.   On 1 October 2015, Woolford J set the matter down for hearing and directed the parties to file brief memoranda of submissions by

9 October 2015.

[5]      On 9 October 2015, both parties filed memoranda.  The defendants’ position

had changed:2

The defendants’ position is that leave to appeal should be granted only on terms which require the plaintiff’s liquidators to accept personal liability for any costs order made against the plaintiff in the Court of Appeal (or such other directions as the Court considers appropriate to give the defendants comfort that any costs order made in their favour in relation to the appeal will be paid).

Issues

[6]      The issues I have to determine on this application are:

1      EBR Holdings Ltd (In liquidation) v McLaren Guise Associates Ltd [2015] NZHC 1996.

2 Memorandum of counsel for the defendants in relation to plaintiff ’s application for leave to appeal to the Court of Appeal, dated 9 October 2015, at [1].

(a)       Should leave to appeal to the Court of Appeal be granted?  If so;

(b)Can I, or should I, attach a condition that any costs awarded by the Court of Appeal in favour of the defendants be met by the liquidator of the plaintiff personally?

(c)       Is the plaintiff entitled to increased costs on this application?

Should leave to appeal to the Court of Appeal be granted?

[7]      I have no doubt that the application for leave to appeal should be granted. Each of the four grounds of appeal relates to the law of witness immunity and its application to expert witnesses.  I will not go into detail.  They are questions of law capable of bona fide and serious argument, and they are of sufficient public and private importance to outweigh the cost and delay of the further appeal.

Can I, or should I, attach a condition that any costs awarded by the Court of Appeal in favour of the defendants be met by the liquidator of the plaintiff personally?

[8]      Neither counsel was able to refer me to any case law.  The defendants simply tell me what they want and the plaintiff submits that the absence of any located authority must surely indicate that they cannot have it.

[9]      The basic principle I adopt is that a lower Court cannot bind a higher Court. Even if the defendants are correct in their argument that attaching a condition to a leave to appeal is not the same thing as attempting to bind the Court of Appeal, I would still refuse to impose the condition.  Questions of cost are prima facie for the Court deciding issues of costs.   These issues include who should pay them.   The defendants can raise this matter with the Court of Appeal.

Is the plaintiff entitled to increased costs on this application?

[10]     I am prepared to award the plaintiff increased costs.  The notice of opposition was filed after I granted an adjournment to enable instructions to be taken.   The notice of opposition went to the merits of the application in a situation where it was

inevitable that leave to appeal would be granted.  The plaintiff is entitled to extra costs for having to respond to the notice of opposition.

[11]     I am also of the view that increased costs are available on the attempt to secure a condition to the grant of leave to appeal.  This forced a hearing which was plainly unnecessary because no law justifying the defendants’ position was able to be put before me, whereas the Court of Appeal certainly has the jurisdiction.

[12]     I do not, however, accept the plaintiff’s schedule of increased costs.  I require the plaintiff to tell me what its actual costs are, broken down by date and step.  This is not a case where I would award increased costs which approach indemnity costs, and I cannot gauge the reasonableness of the plaintiff’s claimed 35 per cent increase unless I know these details. They are to be provided no later than 9 November 2015.

Decision

[13]     The plaintiff’s  application  for leave to  appeal  to  the Court  of Appeal  is

granted.

[14]     The defendants’ application that a condition be attached to the leave requiring any costs adverse to the plaintiff to be paid by the plaintiff’s liquidator is denied.

[15]     The plaintiff’s application for increased costs is granted in principle, but

subject to the stipulations appearing above.

Brewer J