Ingenious Asset Management Limited v McConnon - [2024] NZHC 1888

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2103

[2024] NZHC 1888

IN THE MATTER OF the Companies Act 1993

BETWEEN

INGENIOUS ASSET MANAGEMENT LIMITED

Plaintiff

AND

SIMON MCCONNON

First Defendant

JOHN BAIRD MCCONNON
Second Defendant

… cont over

Hearing: On the papers

Appearances:

G Jindal for the Plaintiff

M Wallace/ K Maclean for the First and Second Defendants K McDonald / N Percy for the Third Defendants

R Stewart / A Wakeman for the Fourth and Fifth Defendants

Date of Judgment:

11 July 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[costs]

This judgment was delivered by me on 11 July 2024 at 12 midday, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Ormiston Legal, Auckland
D’Archy Thompson Law, Christchurch Fee Langston, Auckland
Kevin McDonald & Associates, Auckland Freedom Chambers, Christchurch

INGENIOUS ASSET MANAGEMENT LTD v MCCONNON [2024] NZHC 1888 [11 July 2024]

AND KEVIN BRUCE RAMSEY

Third Defendant
STEPHEN MARK LAWRENCE
Fourth Defendant
CHRISTOPHER CAREY MCULLAGH
Fifth Defendant

Introduction

[1] On 21 March 2024, I gave judgment for the defendants granting their applications for security for costs (the judgment). The plaintiff, Ingenious Asset Management Ltd (Ingenious) was ordered to pay $25,000 into Court for security for all defendants globally. It accounted for steps in the proceeding until determination of Ingenious’ application for strike out and any cross-applications by the defendants for strike out and/or summary judgment.

[2] Ingenious filed a memorandum dated 25 March 2024 requesting that the Court revisit the judgment, relying on rr 7.49 and 14.8(2) of the High Court Rules 2016 (HCR). The memorandum comprised nine pages of submissions, challenging the reasoning and findings in the judgment.

[3] Following directions from the Court, Ingenious filed an interlocutory application confirming the orders sought. The application sought an expanded range of orders relying on rr 7.49, 11.9 and 14.8(2) of the HCR, and leave to appeal the judgment under s 56(3) of the Senior Courts Act 2016 (SCA). The application was opposed by all defendants.

[4] On 16 May 2024, the parties filed memoranda confirming that an agreed position had been reached regarding a proposed recall of the judgment and amendment of paragraph [37] of the judgment. On 20 May 2024, I recalled the judgment.

[5] On 27 May 2024, Ingenious filed a memorandum confirming that the remaining interlocutory applications by the plaintiff under rr 7.49 and 14.8(2) of the HCR and s 56(3) of the SCA were withdrawn.

[6] The judgment was re-issued on 31 May 2024, with an amended paragraph [37] of the judgment as proposed by the parties.1 Costs were reserved.

[7] The parties have been unable to agree on costs following the judgment and Ingenious’ subsequent applications. I will deal with costs in two parts:

1 Ingenious Asset Management v McConnon [2024] NZHC 624.

(a)costs on the application for security for costs; and

(b)costs on Ingenious’ applications under rr 7.49, 11.9 and 14.8 of the HCR and s 56(3)…

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.

Keep reading for free

Create a free CaseChat account to read Ingenious Asset Management Limited v McConnon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1888
Decision Date: 11 July 2024

CaseChat Overview and Summary

Ingenious Asset Management Limited filed a proceeding against several defendants in the High Court of New Zealand, seeking relief under the Companies Act 1993. The defendants responded by filing applications for security for costs, which the court granted, ordering Ingenious to pay $25,000 into Court. Ingenious subsequently applied to revisit and amend the judgment, which was partially recalled and amended by consent. The parties could not agree on costs following the judgment and the subsequent applications, leading to a detailed examination of the costs incurred.

The court considered several legal issues, including whether the defendants unreasonably refused Ingenious' offer of security, whether costs should lie where they fall because Ingenious could not anticipate the outcome of the security applications, whether only one set of costs should be awarded to all defendants collectively, and whether the defendants were entitled to an uplift in costs due to Ingenious' conduct. The court also examined whether Ingenious should be awarded costs or if the defendants were entitled to increased costs due to Ingenious' conduct in pursuing the applications, and whether costs should be awarded against Ingenious' counsel.

The court found that the defendants did not unreasonably refuse Ingenious' offer of security, as the offer was not close to the benefit of the judgment obtained. The court also held that it was not appropriate to award costs to Ingenious for successfully recalling the judgment, as the application did not clearly set out the specific relief sought. Regarding the defendants' costs, the court determined that while Ingenious' applications were substantive challenges to the judgment, they did not contribute unnecessarily to the time or expense incurred by the defendants. Consequently, the court awarded costs to each group of defendants on a 2B basis for the steps reasonably taken in opposing Ingenious' applications.

The court ordered that Ingenious shall pay the first and second defendants $8,723.50 plus disbursements of $660, the third defendant $9,918.50 plus disbursements of $660, and the fourth and fifth defendants $14,579 plus disbursements of $660, payable immediately.

Orders