Goldman v Kiwi Vision Limited

[2016] NZHC 971

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-419-231 [2016] NZHC 971

BETWEEN

ALLAN GOLDMAN

First Plaintiff

ALLAN GOLDMAN & A GOLDMAN FAMILY TRUSTEE LIMITED as Trustees of the Allan Goldman Family Trust

Second Plaintiffs

NZ CREATIVE MARKETING PROJECTS LIMITED

Third Plaintiff

AND

KIWI VISION LIMITED First Defendant

VC INVESTMENTS (2012) LIMITED (IN LIQUIDATION)

Second Defendant

CONTINUED OVERLEAF

Hearing:	19 August 2015 and 5 May 2016
Appearances:	Mr J D Haig for Plaintiffs Mr Branch for first to Third Defendants
Judgment:	18 May 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

18.05.16 at  4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

GOLDMAN & Ors  v KIWI VISION LIMITED & Ors        [2016] NZHC 971 [18 May 2016]

ANDC R J HYLAND Third Defendant

AND             I D BENTLEY and W K STARTUP, in their

Capacities as executors of the estate of

ROY WILSON Fourth Defendants

ANDA H WILSON Fifth Defendant

[1]      The result of the strike-out application was that the first cause of action was struck-out in its entirety but the second remains.  The removal of the first cause of action brought about a substantial change to the shape of the proceedings, it is true.  I do  not  overlook  the  fact  that  the  very  filing  of  the  application  to  strike  out precipitated the filing of an amended statement of claim which eliminated some of the less satisfactory aspects of the earlier pleading.

[2]      I consider that guidance is to be obtained in circumstances such as the present from the Court of Appeal judgment in Packing In Limited v Chilcott where in the judgment that he delivered for the court, Tipping J stated:1

[5]       In a case such as the present, where in broad terms each party has had  similar  success,  we  do  not  consider  it  helpful  to  focus  too closely on the question which party has failed and which has succeeded. Costs in a case such as this should rather be based on the premise that approximately equal success and failure attended the efforts of both sides. To that starting point should be added issues such as how much time was spent on each transaction or group of transactions in issue, and any other matters which can reasonably be said to bear on the Court’s ultimate discretion on the subject of costs. In the end, as in all costs matters, the Court must endeavour to do justice to both sides, bearing in mind all material features of the case.

[3]      Viewed in this way, the application of the principle at HCR 14.2 would seem to be obvious.  Applying the broad type of judgment that Tipping J mentioned, it cannot  be  said  that  one  party or  the  other  can  be  viewed  as  clearly failing  or succeeding when judged by the results obtained on the strike-out application.  Nor is it feasible in the banco type of hearing such as that which took place in this case for the determination of costs issues to be influenced by what part of the time was allocated to which part of the argument.

[4]      The  parties  by  their  counsel  carefully  advanced  further  aspects  of  the application in support of their positions.  Mr Branch, for example, reminded me of a point taken earlier in the course of the strike-out application to the effect that the

remaining causes of action were unlikely to be productive of any large compensation

1      Packing In Limited (in Liquidation) formerly known as Bond Cargo Limited v Chilcott and Anor, CA 33/03, 24 June 2003.

award.   However these and other background matters that both Mr Branch and Mr Haig raised can only be regarded as peripheral to the question of who ought to pay costs.  My conclusion is that costs ought to rest where they fall and there will be

no costs order.

J.P. Doogue

Associate Judge