Linton v Bellaney - [2024] NZHC 2382

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-379

[2024] NZHC 2382

UNDER the High Court Rules 2016

IN THE MATTER

of an application for an injunction under HCR 7.53

BETWEEN

ANDRE LUKE McBRIDE LINTON

First Applicant

ANDRE LUKE McBRIDE LINTON and MOLLY ANN LINTON, and HP HANNA &

CO TRUSTEES (2016) LIMITEDas trustees of the Andrew and Molly Linton Family Trust

Second Applicants

NATURAL HEALTH CLINICS 1987 LIMITED

Third Applicant

AND

CLIFFORD FALCONER BELLANEY
First Respondent

continued….

Hearing: (On the papers)

Counsel:

G A Cooper and E L Pearce for Applicants C R Johnstone for Respondents

Judgment:

23 August 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

LINTON v BELLANEY [2024] NZHC 2382 [23 August 2024]

AND FLEX FX LIMITED
Second Respondent
ANDCLIFFORD FALCONER BELLANEY and KATHLEEN MARY FRANCIS GRAHAM and JAW TRUSTEES
LIMITED, as trustees of the Skye Trust Third Respondent

[1] On 3 July 2024, I recorded in a Minute that the injunction application set down for 6 August 2024 was withdrawn by the plaintiffs/applicants. In that Minute, I timetabled costs submissions as Mr Johnstone, counsel for the respondents, submitted that the fixing of costs now in respect of that application would be consistent with r 14.8 of the High Court Rules 2016 (the Rules).

[2] Costs submissions have now been filed. Mr Johnstone’s submissions are founded on the basic cost principle that costs should follow the event.

[3] Under r 14.8 of the Rules, in relation to the fixing of costs on interlocutory applications, costs are to be fixed when they are “determined” which can be by agreement or by way of withdrawal by leave, as well as court decision.1

[4] As the injunction application was withdrawn, the application is taken to have been determined in the respondents favour meaning that the starting point under r 14.8 of the Rules, is that costs should be fixed now and pursuant to r 14.2(1)(a), costs should follow the event. That is the orthodox position which I intend to adopt.

[5] Mr Johnstone seeks, on behalf of the respondents, that costs be fixed on a 2B basis.

[6] Ms Pearce, counsel for the applicants, goes through a line-by-line analysis of the steps for which costs are sought, sets out the applicants’ reason why particular

1 Morley v Browne [2019] NZHC 3170 at [11].

costs for particular steps are opposed and takes issue with the adoption of costs on a 2B basis.

[7] The scale was intended to make costs predictable and to avoid a painstaking analysis of each individual claim. That said, it is not objectionable for a party resisting costs to suggest that a departure from Band B costs is appropriate.

[8] Before turning to that issue in detail, one challenge to the claim for costs is that the applicants for injunction submit the respondents unreasonably failed to accept a settlement proposal. However, that proposal was on the basis that the application would be withdrawn, with costs to…

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 Linton v Bellaney

Details

AGLC: Linton v Bellaney [2024] NZHC 2382
Case: [2024] NZHC 2382
Decision Date: 23 August 2024

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application for an injunction in the case of Linton v Bellaney, where the applicants sought relief under the High Court Rules 2016. The primary applicants were Andre Luke McBride Linton and Molly Ann Linton, along with HP Hanna & Co Trustees (2016) Limited as trustees of the Andrew and Molly Linton Family Trust. The first respondent was Clifford Falconer Bellaney, with additional respondents including Natural Health Clinics 1987 Limited, Flex FX Limited, Kathleen Mary Francis Graham, and Jaw Trustees Limited as trustees of the Skye Trust. The applicants' injunction application was withdrawn by the plaintiffs, leading to the issue of costs being determined by the court.

The legal issues that the court had to address included whether costs should be fixed at that point in the proceedings and, if so, on what basis. The court had to consider whether the costs should follow the event, as per the principle that costs should follow the event, and whether the respondents were entitled to costs under rule 14.8 of the High Court Rules 2016.

In determining the matter, the court examined the principle that costs should follow the event, which is a fundamental principle in New Zealand litigation. The court considered that since the injunction application was withdrawn, it was deemed to have been determined in favour of the respondents. The court also noted that the applicants had attempted to negotiate a withdrawal of the application on a "drop hands" basis, which did not address the issue of costs at that time. The court was cautious in its consideration of the settlement offer and concluded that it should not influence the costs decision. The court ultimately decided that costs should be fixed immediately in favour of the respondents, in line with the principle that costs follow the event, but adjusted the costs for memoranda to a 2A basis due to their brevity.

The court's final order was that costs should be fixed in favour of the respondents, with specific adjustments for the memoranda claims. The court awarded costs to the respondents for the items listed in the schedule to the respondents' memorandum, with the exception of the memoranda claims, which were awarded on a 2A basis.

Orders