TIMOTHY ERNEST CORBETT SAUNDERS, SAMUEL JOHN MAGILL, JOHN MICHAEL FEENEY, CRAIG EDGEWORTH HORROCKS, PETER DAVID HUNTER, PETER THOMAS AND JOAN WITHERS First Respondents
CREDIT SUISSE PRIVATE EQUITY INCORPORATED Second Respondent
CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP Third Respondent
Court:
Glazebrook, O’Regan and Williams JJ
Counsel:
A J Gavigan as Applicant A R Galbraith QC, D J Cooper and M C Harris for First Respondents (other than Mr Magill and Ms Withers) T C Weston QC and M C Harris for Mr Magill B D Gray QC and A E Ferguson for Ms Withers J B M Smith QC, A S Olney and C J Curran for Second and Third Respondents
Judgment:
12 August 2021
JUDGMENT OF THE COURT
Mr Gavigan must pay the respondents collectively costs of $2,500.
In our judgment dismissing Mr Gavigan’s application to recall our judgment dismissing his leave application, we reserved costs.[1] We gave the respondents leave to file a memorandum if they sought costs. They have now done so and Mr Gavigan has replied.
The applicants seek costs of $2,500 for the first respondents collectively and $2,500 for the second and third respondents. Mr Gavigan opposes any award.
Mr Gavigan not only filed submissions, but also other material relating to the allegations of fraud referred to in the recall judgment.[2] This material was filed without first obtaining leave and, in any event, has no relevance to the present application for costs. If leave had been sought to admit this material, we would have declined it. We have not taken the material into account in determining the present application for costs.
[2]At [4].
We consider an award of costs is appropriate given the application for recall lacked merit and was irregular in a number of respects. The respondents were required to respond to it. But we see a single award to all respondents as better reflecting the effort required from the respondents collectively to respond to the application. In the circumstances we award costs of $2,500 to the respondents collectively. In the absence of agreement to the contrary among the respondents, this should be divided equally between the first respondents on the one hand and the second and third respondents on the other.
Solicitors:
Gilbert Walker, Auckland for First Respondents Russell McVeagh, Wellington for Second and Third Respondents
Details
AGLC
Houghton v Saunders [2021] NZSC 98
Case
[2021] NZSC 98
Decision Date
CaseChat Overview and Summary
The Supreme Court of New Zealand heard an application from Eric Meserve Houghton, the applicant, against Timothy Ernest Corbett Saunders, Samuel John Magill, John Michael Feeney, Craig Edgeworth Horrox, Peter David Hunter, Peter Thomas, and Joan Withers, the first respondents, as well as Credit Suisse Private Equity Incorporated and Credit Suisse First Boston Asian Merchant Partners LP, the second and third respondents, in a case concerning costs. The applicant, Eric Houghton, sought an award of costs from the first respondents collectively and the second and third respondents, while the applicant's counsel, Mr. Gavigan, opposed any award of costs. The court had previously dismissed an application to recall the judgment dismissing the applicant's leave application, and the respondents were now seeking costs for responding to the recall application.
The legal issues the court had to decide were whether an award of costs was appropriate given the application for recall lacked merit and was irregular in a number of respects. The court had to consider the effort required from the respondents collectively to respond to the application and whether the material filed by Mr. Gavigan, which was not relevant to the present application for costs, should be taken into account.
The court found that an award of costs was appropriate given the application for recall lacked merit and was irregular in a number of respects. The court considered that a single award to all respondents was better reflecting the effort required from the respondents collectively to respond to the application. The court awarded costs of $2,500 to the respondents collectively and directed that in the absence of agreement to the contrary among the respondents, the costs should be divided equally between the first respondents on the one hand and the second and third respondents on the other. The court did not take into account the material filed by Mr. Gavigan as it was not relevant to the present application for costs.
The final orders of the court were that Mr. Gavigan must pay the respondents collectively costs of $2,500. The court directed that in the absence of agreement to the contrary among the respondents, the costs should be divided equally between the first respondents on the one hand and the second and third respondents on the other. The court did not take into account the material filed by Mr. Gavigan as it was not relevant to the present application for costs.