Henderson v Walker

[2019] NZHC 3020

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2014-409-45

[2019] NZHC 3020

BETWEEN

DAVID IAN HENDERSON

Plaintiff

AND

ROBERT BRUCE WALKER

Defendant

On the papers

Counsel:

J Moss and H M Weston for Plaintiff

R J B Fowler QC and S B McCusker for Defendant

Judgment:

20 November 2019

JUDGMENT OF THOMAS J (COSTS)

[1]                   Mr Henderson sued Mr Walker for misuse of his private information obtained from a laptop (Laptop) Mr Walker acquired in his role as liquidator of several companies of which Mr Henderson was formerly a director. On 3 September 2019, I issued my decision upholding aspects of Mr Henderson’s claims in breach of confidence and invasion of privacy, and ordering Mr Walker to pay $5,000 in damages.1 I dismissed Mr Henderson’s remaining claims in conversion, misfeasance in public office, breach of statutory duty and contempt of court.

[2]                   I said Mr Henderson was entitled to some measure of costs.2 The parties have been unable to resolve costs between themselves.

1      Henderson v Walker [2019] NZHC 2184.

2 At [321].

HENDERSON v WALKER [2019] NZHC 3020 [20 November 2019]

[3]                   The parties agree the proceeding is appropriately categorised on a 2B basis and there is no objection to certification for second counsel. Mr Henderson’s costs on a scale 2B basis amount to $43,039.3 Mr Henderson also claims disbursements totalling

$15,431. Mr Henderson shared his legal costs with Mr Hyndman, who brought a similar case that was heard together with his. Mr Henderson’s counsel, Mr Moss, who represented both Mr Henderson and Mr Hyndman, suggests a fair allocation of costs is 80 per cent to Mr Henderson and 20 per cent to Mr Hyndman. He says this is based on how much time was spent on each matter. The above figures are based on that assumption.

[4]                   I agree with Mr Moss that it is appropriate to allocate 80 per cent of the costs to the Henderson proceeding. Mr Fowler QC submits on behalf of Mr Walker that  60 per cent is more appropriate. My view is that figure overplays the relative time and expense that would have been incurred by the Hyndman proceeding. The factual narrative concerning Mr Henderson’s claim was complex and detailed. By comparison, the relevant events concerning Mr Hyndman were limited in number and peripheral in nature. In my assessment, costs of legal research likely formed a far smaller component of the costs than the factual work. I also note Mr Hyndman did not advance a claim for conversion,  so  that  legal  work is solely  attributable  to  Mr Henderson’s claim. Finally, an 80/20 split corresponds with the time spent on each claim at the hearings before me.

Calderbank offers

[5]                   The central issue of dispute between the parties concerns a series of Calderbank offers exchanged between the parties between April  and June  2018.  Mr Walker seeks costs on an increased basis from 13 April 2018, the expiry date of his first Calderbank offer.4 Mr…