Hammond v Turvey Company Limited

[2017] NZHC 2280

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1470 [2017] NZHC 2280

BETWEEN

C P HAMMOND, J K LYALL

LONGUET-HIGGINS AND S LONGUET-HIGGINS Plaintiffs

AND

TURVEY COMPANY LIMITED First Defendants

(Continued next page)

Hearing:	13 September 2017
Counsel:	P Mills for Plaintiffs P J Dale for Fifth Defendants
Judgment:	22 September 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 22 September 2017 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Fraser Powrie, Auckland

Hammonds Law, Dargaville

C P HAMMOND AND LONGUET-HIGGINS v TURVEY COMPANY LIMITED [2017] NZHC 2280 [22

September 2017]

ANDT  A   LONGUET-HIGGINS   AND   F   E LONGUET-HIGGINS

In  their  capacity  as  trustees  holding  46 voting shares in Turvey Company Limited

Second Defendants

ANDT  A   LONGUET-HIGGINS   AND   F   E LONGUET-HIGGINS

In their capacities as shareholders in Turvey
Company Limited

Third Defendants

ANDT A LONGUET-HIGGINS Fourth Defendant

AND  D B DENNIS AND A W HAMMOND

As trustees and executors of the estate of
Margaret Annette Longuet-Higgins

Fifth Defendants

[1]      On 14 September 2017, I granted an application by the defendants to file statements  of defence out  of time.  In  doing so,  I dispensed  with  the  plaintiffs’ application for formal proof.

[2]      But,  as  I indicated  in  my minute of  14  September 2017,  I consider  the plaintiffs  should  have  costs  on  their  application  for  formal  proof.    The  only remaining issue is quantum.

[3]      The plaintiffs have filed a memorandum as to quantum. Costs are sought on a

2B basis against the second to fourth defendants only. Mr Dale submitted at the conference that a sum in the order of $750 might be appropriate, having regard to the fact the plaintiffs acted with undue haste.

Assessment

[4]      I am satisfied that costs on a 2B basis, reduced by one-third, are appropriate. As a starting point, and as Mr Dale properly acknowledges, he was late in filing. A grant of indulgence is conventionally made at the expense of a costs award against the party obtaining the indulgence.1

[5]      The reduction reflects the fact the plaintiffs escalated matters with undue alacrity. As noted in my minute, the fifth defendant was only five working days late, while the second to fourth defendants were in the order of eight working days late in filing their statements of defence.  Furthermore, the proceedings were active and the second to fourth defendants were engaging with the plaintiffs in terms of the conduct of the proceedings.  For example, agreement had been reached in relation to interim orders.

[6]      In those circumstances, costs on a 2B basis together with disbursements, reduced by one-third are appropriate.

[7]      Any residual issue as to quantum should be referred to the Registrar, who in turn may refer any specifically disputed items to me if necessary.2