Hyndman v Walker - [2019] NZHC 3021

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-485-709

[2019] NZHC 3021

BETWEEN
IAN BRUCE HYNDMAN

Plaintiff

AND

ROBERT BRUCE WALKER

Defendant

On the papers

Counsel:

J Moss and H M Weston for Plaintiff

R J B Fowler QC and S B McCusker for Defendant

Judgment:

20 November 2019

JUDGMENT OF THOMAS J (COSTS)

[1] Mr Hyndman sued Mr Walker for misuse of his private information obtained from a laptop Mr Walker acquired in his role as liquidator of several companies of which Mr Henderson, an associate of Mr Hyndman, was formerly a director. On 3 September 2019, I issued my decision dismissing Mr Hyndman’s claims in breach of confidence, invasion of privacy, misfeasance in public office, breach of statutory duty and contempt of court.1

[2] I said Mr Walker was entitled to some measure of costs.2 The parties have been unable to resolve costs between themselves.

[3] The parties agree the proceeding is appropriately categorised on a 2B basis and there is no objection to certification for second counsel. As in relation to

1 Hyndman v Walker [2019] NZHC 2188.
2 At [114].

HYNDMAN v WALKER [2019] NZHC 3021 [20 November 2019]

Mr Henderson’s costs, there is a dispute as to the proper allocation of costs between the two proceedings. For the reasons explained in my costs decision for the Henderson proceeding, I consider it appropriate to allocate 20 per cent of the hearing time to this proceeding.3 On that basis, Mr Walker’s costs on a scale 2B basis amount to $33,935.
Mr Walker also claims disbursements totalling $2,007.73.4

[4] These costs were calculated on the basis of the daily recovery rates and time allocations in schs 2 and 3 of the High Court Rules 2016 as they stood prior to the High Court Amendment Rules 2019, which came into force on 1 August 2019, after all steps in this proceeding had been taken.5 Steps taken during the time this proceeding was transferred to the District Court between 27 January 2016 and 15 December 2016 were calculated on the basis of the District Court Rules 2014.

Calderbank offers

[5] Mr Walker seeks a 50 per cent uplift in costs on the basis that Mr Hyndman failed, without reasonable justification, to accept two offers of settlement in the form of Calderbank letters.6

[6] On 4 April 2018, Mr Walker’s solicitors wrote to Mr Hyndman’s solicitors offering $10,000 in full and final settlement of the proceeding and all related claims that might have been brought by Mr Hyndman. The offer was made without prejudice save as to costs and was open for acceptance until 13 April 2018.

[7] In response, on 24 April 2018, Mr Hyndman’s solicitors made a counter offer of $10,000 for damages and $5,000 plus GST for costs. The offer required Mr Walker to provide an acknowledgement of invasion of privacy in simple words to be agreed between the parties at a later stage. The offer was made…

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 Hyndman v Walker

Details

AGLC: Hyndman v Walker [2019] NZHC 3021
Case: [2019] NZHC 3021
Decision Date: 20 November 2019

CaseChat Overview and Summary

Ian Bruce Hyndman initiated legal proceedings against Robert Bruce Walker, asserting multiple claims including breach of confidence, invasion of privacy, misfeasance in public office, breach of statutory duty, and contempt of court. The claims stemmed from Mr Walker’s actions as liquidator of several companies, where he obtained and allegedly misused Mr Hyndman's private information. The High Court of New Zealand was tasked with deciding on the validity of these claims and the associated costs. The central legal issues revolved around whether Mr Walker misused Mr Hyndman's private information and whether Mr Hyndman's refusal to accept settlement offers warranted an increase in costs against him.

The court dismissed all of Mr Hyndman’s claims against Mr Walker, affirming that Mr Walker was not liable for the alleged misuse of private information. Additionally, the court found that Mr Hyndman’s refusal to accept settlement offers made by Mr Walker was unreasonable, given the limited scope and nature of the private information involved and the improbability of success in establishing an invasion of privacy. Despite Mr Hyndman’s objections to certain cost items, the court largely upheld Mr Walker’s claims for costs, subject to minor adjustments. The court determined a 20% uplift in costs was appropriate, acknowledging the merit in the arguments from both parties but emphasizing the unreasonableness of Mr Hyndman’s stance on the settlement offers.

The court ordered Mr Hyndman to pay Mr Walker increased costs amounting to $38,264.40, along with disbursements of $2,007.73. This decision recognised the limited merit of Mr Hyndman’s claims and his unreasonable refusal to accept generous settlement offers, while also taking into account the failure of Mr Walker to admit certain facts that unnecessarily prolonged the proceedings. The court's decision highlights the importance of reasonable settlement negotiations and the consequences of refusing fair offers in litigation.

Orders