IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2008-409-348
[2025] NZHC 108
UNDER
the Fair Trading Act 1986
IN THE MATTER
of a representative action
BETWEEN
ERIC MESERVE HOUGHTON
First Plaintiff
PORT STAFFORD LIMITED Second Plaintiff
AND
TIMOTHY ERNEST CORBETT SAUNDERS, SAMUEL JOHN MAGILL, JOHN MICHAEL FEENEY, CRAIG
EDGEWORTH HORROCKS, PETER DAVID HUNTER, PETER THOMAS and JOAN WITHERS First Defendants
CREDIT SUISSE PRIVATE EQUITY LLC Second Defendant
CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP
Third Defendant
Hearing:
23 October 2024
Appearances:
N R Williams and A Parlane for the representative Plaintiffs D J Cooper KC and S T Coupe for First Defendants
C J Curran, J W Upson and M G Alison for Second Defendant No appearance by or for Third Defendant
Judgment:
10 February 2025
JUDGMENT OF ASSOCIATE JUDGE SKELTON
HOUGHTON v SAUNDERS [2025] NZHC 108 [10 February 2025]
Introduction
[1] The representative plaintiff, Eric Houghton and Port Stafford Ltd (PSL), as the proposed new lead plaintiff (applicants) apply for an order reinstating the proceeding against the second and third defendants so that a claim against those defendants can be pursued under the Fair Trading Act 1986 (FTA). It is proposed that, in the first instance, PSL would pursue a claim for compensation for its own alleged losses, and that directions would then be made “for a facilitation process to remedy losses incurred by five plaintiff representatives and the other represented claimants”.
[2] The proceeding was previously struck out as a result of failure to comply with unless orders relating to security for costs in respect of the stage two trial and confirmation that the claimants were adequately resourced to prepare for and present all aspects of their stage two claims.1 The representative plaintiff sought relief from the consequences of non-compliance with the unless orders. As the proceeding had been struck out, relief would necessarily have involved revival or reinstatement of the proceeding. By agreement between the parties, this application was heard by the Court of Appeal. The application was declined.2 The Supreme Court declined leave to appeal.3
[3] The second defendant opposes the application to reinstate the proceeding on the basis that the application is an abuse of process because it is seeking to relitigate the matters already determined by the Court of Appeal or should otherwise be declined.
[4] There is an extant issue as to whether the third defendant has been properly served with the application. Counsel for the second defendant filed a memorandum dated 16 October 2024 recording that they had recently obtained limited instructions to act for the interests of the third defendant. It is contended that service has not been validly effected on the third defendant because the applicants have not sought leave to serve the application out of New Zealand under r 6.30 of the High Court Rules 2016
[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.
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Houghton v Saunders [2025] NZHC 108
Case
[2025] NZHC 108
Decision Date
CaseChat Overview and Summary
The case of Houghton v Saunders involved an application to reinstate a proceeding that had been struck out for failure to comply with unless orders. The representative plaintiff and Port Stafford Ltd sought to pursue compensation claims against the second and third defendants under the Fair Trading Act 1986. The primary legal issues were whether the application was an abuse of process and whether there was a basis for reviving the proceeding. The applicants argued that the breach of the unless orders was procedural and due to financial difficulties, and that the proceeding should be revived to allow the claimants to prove their losses. However, the Court found that the application was an abuse of process as it attempted to relitigate matters already determined by the Court of Appeal and the Supreme Court. The Court also found that there was no sound basis for reviving the proceeding as there was no belated compliance with the unless orders, no firm proposal for payment of security for costs, uncertainty about the level of security for costs required, and uncertainty as to whether there was adequate funding for the proposed plaintiffs to prepare and pursue the claims. The application for reinstatement was dismissed.