Houghton v Saunders

Case [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…

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Houghton v Saunders [2021] NZHC 3590
Case
[2021] NZHC 3590
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CaseChat Overview and Summary

This case involves a dispute over costs between the plaintiff, Houghton, and the defendants in a class action lawsuit. The case has been divided into two stages, with the first stage determining liability and the second stage determining reliance and loss. The defendants are seeking final costs orders following the plaintiff's claims being struck out due to a failure to comply with unless orders. The court must determine the costs of stage 1, the costs for the steps leading up to the plaintiff's claim being struck out, and the defendants' claim for uplifted costs and liability for costs against Joint Action Funding Ltd (JAFL) and Mr Anthony Gavigan. The court finds that the defendants are entitled to costs for stage 1, but their award is to be reduced by one third to reflect the plaintiff's partial success. The defendants are also entitled to costs for the stage 2 interlocutory applications, but the costs for the wasted costs application are to be reduced by 25 per cent. The defendants' claims for other stage 2 steps claimed under the Schedule on a global band C basis are disallowed, and the plaintiff's recalculation of those steps involving different time band calculations are awarded in substitution. The defendants are permitted to calculate trial preparation costs by including allowance under step 33B for second counsel (and for Mr McGill and Ms Withers a further single allowance under step 33B). An allowance for third counsel is not permitted. The amounts awarded by Dobson J as wasted costs are then to be deducted from the amounts so calculated. The claimed disbursement for Professor Lehn of Compass Lexicon is to be deducted by 45 per cent. The claims for travel and accommodation disbursements for the directors are allowed. The defendants' claim for an uplift under r 14.6 is granted. The uplift will be 33 per cent, and will exclude the particular steps that the court has specified. The application that JAFL and Mr Gavigan be jointly and severally liable with the plaintiff is granted. The application by the plaintiff that only JAFL and Mr Gavigan be liable is declined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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