Houghton v Saunders - [2020] NZHC 2030

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2008-409-348

[2020] NZHC 2030

BETWEEN
ERIC MESERVE HOUGHTON

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 INCORPORATED

Second Defendant

CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP

Third Defendant

Hearing: 30 July 2020

Counsel:

C R Carruthers QC and P A B Mills for plaintiff

D J Cooper for first defendants (except for separate representation noted below)

C L Broad for Mr Horrocks B D Gray QC for Ms Withers

J B M Smith QC and C J Curran for second and third defendants

Judgment:

11 August 2020

RESERVED JUDGMENT OF DOBSON J

[Application to stay effect of unless orders]

HOUGHTON v SAUNDERS [2020] NZHC 2030 [11 August 2020]

Contents

The more recent history [1]

The stay application [6]
Stay under the Court of Appeal (Civil) Rules 2005 [10]

A different approach [26]

Status of unless orders [32]

The current proposal [37]

Defendants’ response to matters raised since the May judgment  [46]
Analysis  [57]
Result  [70]
Documents not authorised by counsel  [72]
Costs  [76]

The more recent history

[1] In a judgment issued on 22 May 2020 (the May judgment), I declined the defendants’ application to strike this proceeding out, and instead made unless orders in the following terms:1
[92] There will accordingly be a striking out of the proceeding on 14 July 2020, unless, by 13 July 2020:

(a)security for costs for stage two in the sum of $1.65 million has been either lodged with the Registry of the Court or provided on other terms reasonably agreed to by the defendants and accepted by the Court by that date; and

(b)senior counsel for the claimants has confirmed that, in his opinion, the claimants are adequately resourced to prepare for and present all aspects of their stage two claims.

[2] This judgment needs to be read in light of the analysis of the position of the parties in the May judgment. Given the extent of matters traversed since the Supreme Court directed the proceeding back to the High Court for a stage two hearing, a fuller understanding may also require reference to earlier judgments.

[3] On 19 June 2020, a notice of appeal from the May judgment was filed in the Court of Appeal.

[4] On 7 July 2020, Mr Carruthers QC filed a memorandum, in his capacity as senior counsel for the plaintiff, advising that he would not be in a position to provide

1 Houghton v Saunders [2020] NZHC 1088.

the confirmation required of him by 13 July 2020, pursuant to the terms of [92](b) of the May judgment. Mr Carruthers asked that I either grant an extension of time for compliance with the order in [92](b) of the May judgment, or a stay of the judgment pending appeal.

[5] On 8 July 2020, I issued a minute…

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 [2020] NZHC 2030
Case: [2020] NZHC 2030
Decision Date: 11 August 2020

CaseChat Overview and Summary

This is an application for a stay of a judgment made in Houghton v Saunders on 22 May 2020. The plaintiff and claimants sought a stay of the unless orders made in that judgment, which required the plaintiff to provide security for costs and for senior counsel to certify the adequacy of the claimants’ resources by 13 July 2020, otherwise the proceeding was to be struck out. The plaintiff and claimants had not complied with those terms. The application was made on 10 July 2020, by which time the notice of appeal had already been filed in the Court of Appeal. The application was dismissed by Dobson J on 11 August 2020. The plaintiff and claimants had not made sufficient progress to ensure that the unless orders would be complied with by 30 September 2020. The Court declined to revisit the terms of the unless orders, which would otherwise have been automatically triggered by non-compliance by 14 July 2020. The Court observed that the plaintiff and claimants had delayed the proceeding at every opportunity since the proceeding was remitted to the High Court for a stage two hearing. The Court refused to permit the proceeding to be delayed further.

Orders