McKinnon v Skelton - [2020] NZHC 2066

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2015-419-429

[2020] NZHC 2066

BETWEEN
NORRIS WARD McKINNON

Plaintiff

AND

DONALD ALFRED SKELTON

Defendant

Hearing: On the papers

Appearances:

JD Savage for the Plaintiff

VA Whitfield & KJ Pennell for the Defendant

Judgment:

14 August 2020

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 14 August 2020 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Norris Ward McKinnon, Hamilton V Whitfield, Hamilton

Norris Ward McKinnon v Skelton [2020] NZHC 2066 [14 August 2020]

[1] In my judgment on the plaintiff’s summary judgment application given on 24 June 2020 (the judgment), I invited the parties to file memoranda on the issues of costs and interest if they could not agree.1 Leave was also reserved to file memoranda relating to the New Zealand dollar/Australian dollar exchange rate, for the purpose of quantifying a claimed set-off that I considered was arguable for Mr Skelton.

[2] Mr Savage filed a memorandum for the plaintiff (Norris Ward) on 15 July 2020, but no submissions have been made for Mr Skelton. In a memorandum dated 27 July 2020, Ms Whitfield advised that Mr Skelton presently intends to take no further steps in the proceeding.

The Australian dollar exchange rate

[3] At paragraph [214] of the judgment, I held that Mr Skelton had a reasonably arguable set-off in the sum of AUD$115,616.97. At paragraph 258(1) of the judgment, I gave summary judgment for Norris Ward in the sum of $277,900.40, minus two set- off amounts that I considered were reasonably arguable for Mr Skelton. One of them (referred to at paragraph [258](1)(b) of the judgment) was the set-off for the AUD$115,616.97. I directed that that sum was to be converted to New Zealand dollars as at 20 November 2015 for the purposes of calculating the New Zealand dollar figure for which Norris Ward would be entitled to summary judgment. If the parties could not agree on the New Zealand dollar amount, leave was reserved to apply further.

[4] Mr Savage produced with his memorandum Reserve Bank exchange rate figures for the Australian dollar exchange rate as at 20 November 2015. The rate stated was 0.9121. On that basis, the AUD$115,616.97 converted to NZ$126,759.09.

[5] I order, for the purposes of paragraph [258](1)(b) of the judgment, that the amount to be deducted under that subparagraph from the sum of NZ$277,900.40 is the sum of NZ$126,759.09. The amount for which summary judgment will be entered for Norris Ward under paragraph [258](1) and (2) of the judgment will accordingly be
$110,082.16.

1 Norris Ward McKinnon v Skelton [2020] NZHC 1445.

Costs

[6] Norris Ward represented itself in the summary judgment application, but the rule that solicitors acting for themselves are entitled to costs if they are successful in a High Court proceeding applies.2 Norris Ward asks for costs on a 2B basis, in the sum of $18,881. It also seeks disbursements in…

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.

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Details

Case: [2020] NZHC 2066
Decision Date: 14 August 2020

CaseChat Overview and Summary

In McKinnon v Skelton, Norris Ward McKinnon, the plaintiff, sought summary judgment against Donald Alfred Skelton, the defendant, in a dispute related to financial transactions and set-offs. The case was heard on the papers and the court delivered judgment on 14 August 2020. The court was required to determine the appropriate amount of exchange rate conversion for a set-off claimed by Skelton, as well as the costs and interest to be awarded to McKinnon.

The court found that Skelton had a reasonably arguable set-off in the sum of AUD$115,616.97. The court directed that this sum be converted to New Zealand dollars as at 20 November 2015 for the purpose of calculating the New Zealand dollar figure for which McKinnon would be entitled to summary judgment. McKinnon provided Reserve Bank exchange rate figures for the Australian dollar exchange rate as at 20 November 2015, and the court accepted this rate for the conversion. The resulting sum was NZ$126,759.09.

Regarding costs, McKinnon claimed costs on a 2B basis, which is the rate applicable for a Category 2 proceeding in the High Court. The court accepted that McKinnon was entitled to full scale costs on Skelton's counterclaims, which had been finally dismissed. However, the court decided that full costs should not be awarded on McKinnon's application for summary judgment on its own claims due to the substantial overlap of issues between the claim and the counterclaims. The court awarded McKinnon costs of $4,780 for filing the defence to Skelton's counterclaims, and $9,400 (approximately two-thirds of the amount claimed) on McKinnon's application for summary judgment on its own claims, for a total of $14,180 in costs, together with disbursements of $1,760.

Lastly, the court considered McKinnon's claim for interest on the sum of $110,082.16 (the figure at which the summary judgment had now been quantified) at the rate of 14.95 per cent per annum, which was the Visa rate for the Bank of New Zealand, as specified in McKinnon's terms and conditions. The court accepted that McKinnon was entitled to claim interest at that rate and awarded interest in the total sum of $77,462, calculated to the date of the judgment.

In summary, the court ordered that Skelton pay McKinnon $110,082.16 for the summary judgment amount, $14,180 in costs, $1,760 in disbursements, and $77,462 in interest.

Orders