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Harrington v Wilding

Harrington v Wilding

Case [2019] NZCA 605 3 December 2019

Jurisdiction

Costs

Specific Performance

Unconscionable Conduct

Admissibility of Evidence

Civil Litigation & Procedure

Contract Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA412/2018
[2019] NZCA 605

BETWEEN	JONATHAN OWEN HARRINGTON Appellant
AND	TIMOTHY WILDING Respondent

Hearing:	11 September 2019
Court:	Gilbert, Venning and Woolford JJ
Counsel:	I G Hunt and C Light for Appellant P J Dale QC for First Respondent
Judgment:	3 December 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe cross-appeal is dismissed.
CWe make no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Table of Contents

Introduction  [1]
Mr Harrington’s appeal  [10]
Mr Wilding’s cross-appeal     [11]
Applicable principles  [14]
Did Mr Wilding fail, without reasonable justification,
to accept settlement offers? [15]
Did the Judge err in assessing comparative success?                   [24]
Submissions  [25]
  Analysis  [30]

Did the Judge err in disregarding the hacking of
Mr Harrington’s emails in assessing costs?  [36]
Should the Judge have made a Sanderson order?  [41]
Should the Judge have awarded costs to Mr Harrington
on his application for costs?  [43]
Should the Judge have increased the costs award to
compensate Mr Harrington for the delay in issuing
the judgment?  [46]
Conclusion  [49]
Result  [51]

Introduction

This appeal and cross-appeal are against a comprehensive costs judgment (comprising 82 pages including three schedules) delivered by Nicholas Davidson J on 22 June 2018.[1] In making his assessment as to how costs should be dealt with, the Judge had the unique advantages of having: presided over the 32-day trial; painstakingly analysed the many contested issues involved in the claims and counterclaims in the course of producing an interim results judgment on 5 April 2017[2] and a comprehensive (153 page) reasons judgment on 12 April 2017;[3] presided over a one‑day hearing of submissions on the various costs applications made on behalf of all parties; and grappled with the competing arguments about every conceivable aspect of costs in the course of preparing his lengthy and detailed costs judgment. This is an unpromising backdrop for a successful appeal against the exercise of a discretion in awarding costs.
[1]Wilding v Te Mania Livestock Ltd [2018] NZHC 1506 [Costs judgment].
[2]Wilding v Te Mania Livestock Ltd [2017] NZHC 649 [Interim judgment].
[3]Wilding v Te Mania Livestock Ltd [2017] NZHC 717 [Reasons judgment].
The Judge described the principal issue in the substantive litigation as being whether Mr Wilding (the first plaintiff in the High Court and the respondent in this Court) should have the opportunity to acquire the shares of the other defendant shareholders in Te Mania Livestock Ltd (the company) or whether the company should be liquidated, as sought by Mr Harrington (the third defendant in the High Court and the appellant in this Court). This was in the context of claims and counterclaims alleging oppressive and unfairly prejudicial conduct under s 174 of the Companies Act 1993. The Judge decided that Mr Wilding should be given the opportunity to purchase the defendants’ shares rather than making an order to wind up the company. Mr Wilding subsequently elected…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harrington v Wilding

Details

AGLC: Harrington v Wilding [2019] NZCA 605
Case: [2019] NZCA 605
Decision Date: 3 December 2019 at 9.30 am

CaseChat Overview and Summary

This appeal and cross-appeal are against a costs judgment made by the High Court. The appeal is brought by Mr Harrington, the appellant, against the costs awarded to him by the Judge. The cross-appeal is brought by Mr Wilding, the respondent, who supports the judgment but also appeals on other grounds. The Judge awarded costs to Mr Harrington, but Mr Harrington considers the award inadequate. Mr Wilding argues that the Judge should have directed that costs lie where they fall and made a Sanderson order. This Court considers the appeal and cross-appeal under various headings. The Court finds that the Judge did not err in his assessment of the parties' comparative success or in disregarding the hacking of Mr Harrington's emails in assessing costs. The Court also rejects the suggestion that a Sanderson order should have been made and that Mr Harrington should have been awarded costs on his application for costs. Finally, the Court finds that no order should be made to increase the costs award to compensate Mr Harrington for the delay in issuing the judgment. The Court finds no basis to interfere with the Judge's carefully reasoned conclusions and dismisses the appeal and cross-appeal. Costs lie where they fall.

Orders