Enright v Enright

[2019] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1636

[2019] NZHC 1937

BETWEEN

TERRENCE JOHN ENRIGHT,

CATHERINE ANN NEWTON, WILLIAM JAMES YOUNG, WAYNE MICHAEL

ENRIGHT, GENE HERSCHEL ENRIGHT
Plaintiffs

AND

SHANE ANTHONY ENRIGHT

First Defendant

…/cont

Hearing:

On the papers

Appearances:

T M Molloy for the Plaintiffs

I T F Hikaka and C Upton for the First, Third and Fourth Defendants
S L Robertson QC and A H H Choi for the Fifth Defendant

Minute:

9 August 2019

JUDGMENT NO 2 OF PALMER J

This judgment is delivered by me on 9 August 2019 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel/Solicitors:201636

D A T Chambers QC, Auckland ([email protected]) S Robertson QC, Auckland ([email protected]) T M Molloy, Barrister, Auckland ([email protected])

S L McColgan, Barrister, Auckland ([email protected]) Spencer Legal, Auckland ([email protected])

LegalSalmonLong, Auckland ( [email protected]) Glaister Ennor, Auckland ([email protected])

ENRIGHT v ENRIGHT [2019] NZHC 1937 [9 August 2019]

CIV-2016-404—1636

…cont/2

THE NEW ZEALAND GUARDIAN TRUST COMPANY LTD

Second Defendant

SHANE ANTHONY ENRIGHT
Third Defendant

ERIC JOHN THOMSON

Fourth Defendant

SOUTHERN LAKES HOLDINGS LTD
Fifth Defendant

Judgment

[1]                 In my substantive judgment in this proceeding of 22 May 2019, I made orders against the first or fourth defendants, the third defendant and the fifth defendant and in favour of four of the five plaintiffs.1 I awarded simple interest on the compensation payable, from 30 June 2008.2 I also stated:

[225] The parties agreed costs should be awarded on a 2B basis. On the face of the result of the judgment, four-fifths of the plaintiffs’ costs should be awarded against the defendants to the four successful plaintiffs and one fifth of the defendants’ costs should be awarded against Terry. But counsel requested leave to file submissions to deal with unknown complexities depending on the result of this judgment. I grant leave for the plaintiffs to file submissions of no more than 10 pages on costs within 15 working days of the judgment and the defendants to file submissions of the same length within ten working days of that.

[2]                 Mr Molloy, for the plaintiffs, filed a memorandum dated 13 June 2019, quantifying costs on a 2B basis, disbursements and interest. Mr Hikaka, for the first, third and fourth defendants, and Ms Robertson QC for the fifth defendant, identify specific issues of dispute between the parties, which I deal with in turn. Otherwise, I confirm the costs, disbursements and interest as sought, jointly and severally, including certification for second counsel.

Separate representation

[3]                 Rule 14.15 of the High Court Rules 2016 provides the Court “must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so”, if several defendants defended a proceeding separately and it appears to the court they could have joined in their defence.

Separate representation of Mr Thomson

[4]                 Mr Molloy submits the first, third and fourth defendants should be awarded one set of costs because they had common representation. Mr Hikaka submits the fourth defendant should be entitled to recover costs relating to the period before 11 July 2018, when he was separately represented. I agree with Mr Hikaka. It was

1      Enright v Enright [2019] NZHC 1124 at [150], [220] and [224](c).

2      At [224](c).

reasonable for Mr Thomson to be separately represented for that period. Separate costs are payable to him.

Separate representation of the fifth defendant

[5]                 Mr Molloy submits there was no reason why the fifth defendant should have had separate representation from the other defendants because there were no cross- notices between them, no conflict of evidence or interest and nothing to displace the presumption of one set of costs.

[6]                 Ms Robertson submits a joint defence could not reasonably be expected and the fifth defendant had to be separately represented because there were actual conflicts of interest between them, the first defendant filed a claim against the fifth defendant, only it had to respond to some of the plaintiffs’ claims, its interests are not aligned with those of the first and fourth defendants and no reduction in costs is justified.

[7]                 I accept the fifth defendant required separate representation due to the conflicts, and potential conflicts, between its interests compared and those of the other defendants. Separate costs are payable to the fifth defendant.

Costs schedule issues

[8]                 Ms Robertson submits certain steps were incorrectly calculated by the plaintiffs. I consider:

(a)The three statements of reply are sufficiently different that the plaintiffs are entitled to costs for three replies.

(b)No costs are payable for the case management conference that was vacated.

(c)Costs are payable for two sets of inspection (corresponding to the two sets of defendants).

(d)Costs for commencement of the defence are set at two days.

(e)The parties may choose to implement the costs by way of offset by agreement.

[9]                 Mr Hikaka submits the first, third and fifth defendants are entitled to costs from the plaintiffs for cross-notices and answering interrogatories. I agree and so order.

Disbursements

[10]            As Ms Robertson submits, the successful plaintiffs are entitled to four-fifths of the plaintiffs’ disbursements, proportionate to the costs and taking into account Mr Terry Enright’s lack of success.

Expert witness fees

[11]            Mr Molloy submits the plaintiffs’ actual costs of Ms Greenwood and Mr MacAvoy as expert witnesses should be recoverable, relying on Air New Zealand Ltd v Commerce Commission.3 Ms Robertson submits Ms Greenwood’s fees of $56,620 were incurred for the conduct of the proceeding against the second defendant as well as the other defendants, and were not reasonable in amount. I consider Ms Greenwood’s expert evidence was exceptionally helpful to my decision. I agree four- fifths of the actual costs of her advice, and Mr MacAvoy’s, are recoverable by the successful plaintiffs.

[12]            Ms Robertson and Mr Hikaka submits one fifth of Ms Payne’s expert witness costs to their clients should be recoverable. Mr Hikaka submits one fifth of Mr Spargo’s expert witness costs should be recoverable. I agree and so order.

Interest

[13]            The plaintiffs have calculated interest in accordance with the orders in the judgment, to 13 June 2019. The defendants agree with the calculations. I order accordingly.

Palmer J

3      Air New Zealand Ltd v Commerce Commission [2007] 2 NZLR 494 (CA).