Houghton v Saunders

[2021] NZHC 3590

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2008-409-348

[2021] NZHC 3590

BETWEEN

E M HOUGHTON

Plaintiff

AND

T E C SAUNDERS & ORS

First Defendant

AND

CREDIT SUISSE PRIVATE EQUITY LLC

Second Defendant

AND

CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP

Third Defendant

Hearing:

30 November and 1 December 2021

Appearances:

V L Heine QC and J A Tocher for the Plaintiff

D J Cooper, M C Harris and S T Coupe for the First Defendants J B M Smith QC, A S Olney and C J Curran for the Second and Third Defendants

D Salmon QC and D M Kraitzick for the Non-Parties

Judgment:

21 December 2021

JUDGMENT OF COOKE J

(Final costs awards)

Table of Contents

Background  [4]

Costs of stage 1  [15]

The applicable principles  [16]

Assessment  [22]

Costs of stage 2  [30]

Step 1: Interlocutory applications  [33]

Step 2: Other stage 2 steps  [43]

Step 3: Trial preparation  [50]

Step 4: Disbursements  [62]

HOUGHTON v SAUNDERS & ORS [2021] NZHC 3590 [21 December 2021]

Extended liability  [73]

Uplifted costs  [74]

Claims against JAFL and Mr Gavigan  [81]

Mr Houghton’s request to avoid liability  [93]

Conclusion  [96]

[1]                 This judgment deals with the final costs awards to be made in this proceeding. It is intended to bring this long running proceeding to a close. By application dated 28 May 2021 the defendants seek final costs orders following the plaintiff’s claims being struck out as a consequence of a failure to comply with unless orders.1

[2]The matters that now fall to be determined are in three main areas:

(a)The costs of the stage 1 trial which Dobson J has previously addressed by making preliminary orders following the successful appeal by the plaintiff group to the Supreme Court. These orders contemplated that the final costs awards for stage 1 would depend on the ultimate outcome of stage 2. It is now necessary to make the final award in relation to stage 1 now that the plaintiff’s claims have been struck out.

(b)The costs for the steps leading up to the plaintiff’s claim being struck out, including the costs of interlocutory steps, and the costs of preparing for the stage 2 trial not already covered by a wasted costs order made following the adjournment of the stage 2 trial.

(c)The defendants’ claim for uplifted costs in relation to the costs contemplated by (b) above, and the claim that costs orders should be made against not only the plaintiff but also Joint Action Funding Ltd (JAFL) and Mr Anthony Gavigan given the role played by them in funding/promoting the litigation. There is also the plaintiff’s claim that only these parties should be liable.

1      Houghton v Saunders [2020] NZHC 2030 at [71] (strike out); Houghton v Saunders [2020] NZHC 1088 (unless orders).

[3]                 Within each of those three areas there are a number of issues to be addressed. They were addressed in detailed written submissions and oral argument over…