Houghton v Saunders

The plaintiff, Eric Meserve Houghton, sought an adjournment of the hearing of stage two of this proceeding, which was initially scheduled for five weeks, starting on 4 November 2019. The defendants opposed the adjournment but conceded that if granted, the adjournment would be subject to an order in their favour for their wasted costs in preparing for the hearing. The defendants argued for a substantial increase over the presumptive scale cost entitlement for the preparation stage of a hearing that was then adjourned. The plaintiff argued that the quantum of wasted costs claimed by the defendants was excessive and unrealistic. The court was required to decide the appropriate quantum of wasted costs to be awarded to the defendants and whether the non-parties, Joint Action Funding Limited (JAFL) and Mr Anthony Gavigan, should be jointly and severally liable for the wasted costs.

The court considered the nature of the case, the scale of the hearing that had been adjourned, and the length of the warning that the defendants had that preparation should either be scaled back or put on hold. The court also considered the technical nature of the expert evidence and the range of individual circumstances of the claimants on which the defendants may wish to cross-examine them. The court found that a substantial portion of the preparatory work would retain much of its utility for the adjourned hearing little more than six months later. The court considered the appropriate order for wasted costs to be one in the sum of $110,000 for all of the first defendants, to be shared between the majority and the two directors who had elected to be separately represented, as counsel agreed between themselves. The court also ordered the second and third defendants to be entitled to an award of $100,000 for wasted costs. The court found that the non-parties, JAFL and Mr Gavigan, should be jointly and severally liable for the wasted costs and disbursements. The ultimate disposition in respect of costs obligations and entitlements remained unclear, and the enforcement of the costs order was stayed until the fate of the adjourned fixture was known.