Houghton v Saunders HC Christchurch CIV-2008-409-000348

[2011] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2008-409-000348

BETWEEN  ERIC MESERVE HOUGHTON Plaintiff

ANDTIMOTHY ERNEST CORBETT SAUNDERS

SAMUEL JOHN MAGILL JOHN MICHAEL FEENEY

CRAIG EDGEWORTH HORROCKS PETER DAVID HUNTER

PETER THOMAS JOAN WITHERS First Defendants

ANDCREDIT SUISSE PRIVATE EQUITY INC (FORMERLY CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY INC)

Second Defendant

ANDCREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP Third Defendant

ANDFIRST NEW ZEALAND CAPITAL Fourth Defendant

Judgment:      4 August 2011

JUDGMENT OF HON JUSTICE FRENCH

as to Costs

[1]      On 8 June 2011 I delivered a judgment dealing with a set of three interrelated interlocutory applications, namely:

i)        The   plaintiff’s   application   to   lift   an   interim   stay   of   the proceeding.

HOUGHTON V SAUNDERS HC CHCH CIV-2008-409-000348 4 August 2011

ii)       Various applications by the defendants to strike out certain parts of the amended statement of claim.

iii)      The defendants’ application for security of costs.

[2]      I granted the application to lift the stay, awarded security for costs, granted some of the strike out applications and dismissed or deferred others.

[3]      As regards costs, I expressed the provisional view that because there had been mixed fortunes costs should lie where they fell.  However, if any party wished to apply for costs, they were given the right to file an application.

[4]      Since then, the plaintiff has filed an application seeking costs in relation to the application  to  lift  the  interim  stay,  on  the  grounds  that  the  plaintiff  was  wholly successful in relation to that application.

[5]      I  am  not,  however,  persuaded  to  depart  from  my  provisional  view,  for  the following reasons:

i)        As Mr Cooper points out, the stay application was in substance the review of the representative and funding arrangements required by the Court of Appeal anyway.  The matters only came before the Court in the procedural form of a stay application because breaches of earlier directions had lead to the imposition of an interim stay.

ii)       It is artificial to isolate out the stay application when there were issues common to all three applications, when the plaintiff’s success in “defeating” some of the strike out applications was achieved by significant re-pleadings and when it was a condition of lifting the stay that the plaintiff pay security for costs.

iii)      Having regard to the overall outcome (including the defendants’ application to cross-examine Mr Gavigan), it is a situation of mixed fortunes.

[6]      I accordingly confirm that costs are to lie where they fall.

[7]      There will also be no order for costs arising out of this costs application.

Solicitors:
Wilson McKay, Auckland

(Counsel: A J Forbes QC, Christchurch; J Eichelbaum, Auckland) Bell Gully, Auckland

Clendons, Auckland

Russell McVeagh, Wellington
Jones Fee, Auckland

(Counsel: D McLellan, Auckland) McElroys, Auckland