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Houghton v Saunders

Houghton v Saunders

Case [2013] NZHC 3452 18 December 2013

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2008-409-348 [2013] NZHC 3452

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 INC (FORMERLY CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY INC)
Second Defendant
CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP
Third Defendant
FIRST NEW ZEALAND CAPITAL Fourth Defendant
FORSYTH BARR LIMITED Fifth Defendant

On papers

Judgment: 18 December 2013

JUDGMENT OF DOBSON J (Defendants’ costs claims for interlocutory hearings, July-September 2013)

HOUGHTON v SAUNDERS [2013] NZHC 3452 [18 December 2013]

Introduction

[1] The defendants have applied for costs on a category 3B basis in respect of the steps taken for the hearing of interlocutory arguments in July, August and September
2013. The main areas of dispute are:

(a) the extent to which the defendants were successful in relation to the orders sought;

(b) the level of costs claimed by each defendant, including the choice of

3B instead of 2B scale for all steps, and the likelihood of duplication amongst defendants.

The extent to which the defendants were successful

[2] The general principle governing costs is that costs should follow the event, and be awarded to a successful party against an unsuccessful party.1 All matters regarding costs are at the Court’s discretion,2 and departures from the normal range should be accompanied by reasons.3

[3] The majority of the interlocutory orders sought by the defendants were granted, and the plaintiff ’s application to have Hunter Hall’s claims heard at the first stage of the trial was not granted. However, each of the applications needs to be dissected in more detail to determine the extent to which the defendants were successful.

[4] The plaintiff disputed the extent of duplication, both in preparation for, and appearances on, the various applications. My overall impression was that the applications reflected the defendants dragging a somewhat reluctant plaintiff to the barrier on the various obligations for interlocutory progress with the proceedings. The extent of opposition on behalf of the plaintiff to some of the defendants’
applications tended to lessen shortly before, or during, hearings. That was certainly

1      High Court Rules, r 14.2(a).
2      High Court Rules, r 14.1.
3      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [16].

the case in relation to applications for further particulars of the plaintiff ’s statement of claim.

Application for further discovery

[5] My relevant judgment identified three categories of documents that were still disputed: the opt-in forms, the electronic data, and the JAFL documents.4 The applications were pursued by the first, second and third defendants.

[6] Discovery of the opt-in forms and the JAFL documents was ordered, but the plaintiff was not required to pay for transforming the electronic data it had provided to the defendants into a readable format. The defendants were therefore successful in respect of two out of three categories of documents…

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 [2013] NZHC 3452
Case: [2013] NZHC 3452
Decision Date: 18 December 2013

CaseChat Overview and Summary

The case of Houghton v Saunders is an interlocutory application for costs made by the defendants in relation to various steps taken in July, August and September 2013. The plaintiffs were represented by a class of claimants and the defendants included individuals and companies. The main issues in this case were the extent to which the defendants were successful in their applications and the level of costs claimed by each defendant. The court held that the majority of the interlocutory orders sought by the defendants were granted and that the plaintiff's application to have Hunter Hall's claims heard at the first stage of the trial was not granted. The court found that the defendants were successful in obtaining discovery of two out of three categories of documents they sought. The court also found that the first defendants were entitled to assert privilege in respect of certain documents, while the second and third defendants were only partially successful in their claims to privilege in their documents. The court held that all defendants were successful in their application for security for costs. The court found that the defendants were entitled to costs on their applications for further and better particulars, subject to considerations of overlap. The court held that the appropriate costs scale for the interlocutory steps was category 2, rather than category 3 as claimed by the defendants. The court found that there was some overlap in the work required for filing the applications and preparing the submissions, and that separate costs should be awarded to reflect this. The court held that the costs entitlements of the respective defendants on the relevant interlocutories were as follows: First Defendants - $59,318.25, Second and Third Defendants - $41,235.46, Fourth Defendant - $28,605.52, and Fifth Defendant - $28,305.63. Costs on this application for orders on costs will lie where they fall.

Orders