Eversons International Limited (in liquidation) v Stewart

[2022] NZHC 2250

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000192

[2022] NZHC 2250

UNDER

the Companies Act 1993

BETWEEN

EVERSONS INTERNATIONAL LIMITED

(In Liquidation) First Plaintiff

AND

ELIZABETH HELEN KEENE and LUKE NORMAN

Second Plaintiffs

AND

EVAN KERRY STEWART

Defendant

Hearing:

On the papers

Counsel:

M J Tingey and C W Gambrill for Plaintiffs K W Clay for Defendant

R J Wallace for the Commissioner of Inland Revenue

Judgment:

5 September 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 5 September 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

EVERSONS INTERNATIONAL LTD (in liq) v STEWART [2022] NZHC 2250 [5 September 2022]

[1]    In a judgment of 13 July 2022, I dismissed an application by Mr Stewart under r 8.21 High Court Rules 2016 for non-party discovery from the Commissioner of Inland Revenue.1 In relation to costs, I stated I could see no reason why the plaintiffs and the Commissioner would not be entitled to costs against Mr Stewart, but if there was any dispute about that counsel could submit memoranda.

[2]I understand that there was no agreement between counsel.

[3]    Counsel for the plaintiffs and the Commissioner have submitted memoranda on costs. While initially Mr Stewart’s counsel indicated he wished to be heard on the matter of costs,2 he has now advised that he will not be filing a memorandum.

[4]    The plaintiffs and the Commissioner were successful in opposing Mr Stewart’s application. I consider they  are  each entitled to their  costs.  While both opposed  Mr Stewart’s application, they had very different interests to protect and it was appropriate they be separately represented.

[5]    The proceeding is a category 2 proceeding for costs purposes and the application was one of average complexity, requiring counsel of skill and experience considered average in the High Court. Both the plaintiffs and the Commissioner have sought costs on a 2B basis along with disbursements, which is appropriate except in one respect.

[6]    I have no issues with the Commissioner’s claim and find the Commissioner is entitled to costs of $6,692 plus disbursements of $110 making a total of $6,802.

[7]    As far as the plaintiffs are concerned, the principal issue that was before me on the application was whether the disclosure of the documents sought by Mr Stewart was prohibited by s 18 of the Tax Administration Act 1994. That issue was dealt with by the Commissioner. The issues relied upon by the plaintiffs were different issues which had previously been the subject of another hearing. For that reason, I consider

1      Eversons International Ltd (in liq) v Stewart [2022] NZHC 1651.

2      Eversons International Ltd (in liq) v Stewart HC Christchurch, 3 August 2022, Mander J (Minute).

a comparatively small amount of time would have been spent in the preparation of the plaintiffs’ submissions.

[8]    I therefore find the plaintiffs are entitled to 2B costs except in relation to the preparation of submissions, which should appropriately be awarded on a 2A basis. The result is that the plaintiffs are awarded costs of $4,302 plus disbursements of

$724.63 making a total of $5,026.63.

Result

[9]    In respect of the defendant’s unsuccessful application for non-party discovery, the plaintiffs and the Commissioner are awarded costs.

[10]The plaintiffs are awarded costs in the amount of $ 5,026.63.

[11]The Commissioner of Inland Revenue is awarded costs in the amount of

$6,802.

O G Paulsen Associate Judge

Solicitors:

Martelli McKegg, Auckland
Layburn Hodgins Limited, Christchurch

Inland Revenue Department (Rob Wallace), Christchurch