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Houghton v Saunders

Houghton v Saunders

Case [2021] NZSC 98 12 August 2021

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 6/2021
[2021] NZSC 98

BETWEEN	ERIC MESERVE HOUGHTON Applicant
AND	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.

____________________________________________________________________

REASONS

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.
[1]Houghton v Saunders [2021] NZSC 76 [Recall judgment] at [9]. An application to recall the recall judgment was dismissed: Houghton v Saunders [2021] NZSC 92.
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

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 Houghton v Saunders

Details

AGLC: Houghton v Saunders [2021] NZSC 98
Case: [2021] NZSC 98
Decision Date: 12 August 2021

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.

Orders