Kidd v Van Heeren - [2015] NZHC 1572

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2015] NZHC 1572

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing: 6 July 2015

Counsel:

B O'Callahan and E Morrison for Plaintiff
B Latimour and A Wakeman for Defendant

Judgment:

7 July 2015

JUDGMENT OF FOGARTY J As to costs

This judgment was delivered by me on 7 July 2015 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Kirkland Morrison O’Callahan Limited, Auckland
Jones Fee, Auckland

KIDD v VAN HEEREN [2015] NZHC 1572 [7 July 2015]

Introduction

[1] The plaintiff applied to the Court seeking the remedy of taking of account. This was pleaded as an interlocutory application. It was successful.1

[2] An order for costs in favour of the plaintiff was made in these terms:2

The defendant shall pay the plaintiff’s costs of this application.

[3] The parties have not agreed costs. A number of issues divide them. This judgment deals with two issues. The remaining issues are subject to further submissions.

[4] The issues deal with in this judgment are:

(a) Whether the plaintiff is entitled to indemnity costs; and

(b)Whether the order for costs can include the costs of the second amended statement of claim filed on 27 May which preceded the application for the order for account, dated 27 June 2014.

Indemnity costs

[5] The defendant seeks indemnity costs, relying on High Court Rule 14.6(4)(a)

or (f), which provide:

14.6 Increased costs and indemnity costs

…

(4) The court may order a party to pay indemnity costs if—

(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

…

1 Kidd v van Heeren [2015] NZHC 517.
2 At [172](i).

(f) some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.

[6] It is common ground that these proceedings were complex and significant and should be approached as category 3, under High Court Rule 14.3.

[7] These proceedings had originally commenced in 1996 with the claim that the plaintiff and the defendant were in a worldwide 50/50 partnership. The defendant applied to have the proceedings struck out or permanently stayed by relying on a written indemnity executed by both the plaintiff and the defendant and dated
18 January 1991. The defendant contended the indemnity constituted a complete defence as it provided for a full and final settlement of all matters between the parties.

[8] On 21 May 2013, the South Gauteng High Court of South Africa (Satchwell J) declared the indemnity to be void and of no force and effect. She did so having concluded “that there were misrepresentations which were deliberately made (by the defendant) to the plaintiff in order to get him to sign it”.3

[9] The New Zealand judgment described this as a finding of deceit.4 Relying on…

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 Kidd v Van Heeren

Details

AGLC: Kidd v Van Heeren [2015] NZHC 1572
Case: [2015] NZHC 1572
Decision Date: 7 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kidd v Van Heeren was heard, where the plaintiff, Michael David Kidd, sought an order for taking of account as an interlocutory application against the defendant, Alexander Pieter Van Heeren. The plaintiff succeeded in the application, and the court ordered the defendant to pay the plaintiff's costs of the application. The case primarily addressed two issues: whether the plaintiff was entitled to indemnity costs and whether the order for costs could include the costs of the second amended statement of claim filed before the application for the order for account.

The court considered whether the defendant's actions warranted the award of indemnity costs. The proceedings were complex and significant, and the defendant's conduct was found not to be vexatious, frivolous, improper, or unnecessary. The court held that the defendant was entitled to test the law in New Zealand regarding issue estoppel, arising from the South African High Court judgment. Therefore, the plaintiff was not entitled to indemnity costs.

As for the second issue, the court found that the filing of the second amended statement of claim after the South African judgment was necessary to provide the context for the application for taking of account as an interlocutory application. There was a significant overlap in the preparation of the pleadings in the second amended statement of claim and the application for taking of account. The court considered it appropriate that the costs in preparing the second amended statement of claim be taken into account and allowed now.

In conclusion, the court held that the plaintiff was not entitled to indemnity costs, but the order for costs could include the costs of the second amended statement of claim. The court reserved the remaining cost issues to be dealt with in the second judgment.

Orders