McLaughlin v McLaughlin
[2025] NZHC 353
•28 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-442-52
[2025] NZHC 353
BETWEEN MARK JAMES McLAUGHLIN and ANDREW ASHLEY McLAUGHLIN (as
beneficiaries of the Ashley Trust) PlaintiffsAND
AND
JOHN DAVID MANUEL McLAUGHLIN
First Defendant
GLASGOW HARLEY TRUSTEE LIMITED
Second Defendant
Hearing: 19 February 2025 Counsel:
A A H Low for Plaintiffs
O D Peers for First Defendant
J N Bierre for Second Defendant J Forsey for Trustees
Judgment:
28 February 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
(Costs)
McLAUGHLIN v McLAUGHLIN [2025] NZHC 353 [28 February 2025]
[1] This costs judgment is hopefully the final chapter in a long running dispute described by Gendall J, in a judgment I refer to below, as “long running, bitter and acrimonious family litigation brought by the plaintiffs”.1
[2] The background to this and an earlier costs judgment can be found in the judgment of Gendall J dated 9 November 2021.2 At the risk of grossly over simplifying the dispute that led to his Honour’s 434 paragraph judgment, the plaintiffs asserted the first and second defendants mismanaged the subdivision of a rural property owned by the Ashley Trust (the Trust) which was settled by the plaintiffs and first defendant’s parents. It was alleged the first defendant, in acting as paid project manager for the development and through his personal involvement in the development, breached his fiduciary duties.
[3] As well as seeking damages and an account of profits, the plaintiffs sought the removal of the first defendant as a trustee of the Trust. He resigned as a trustee during the lengthy hearing before Gendall J.
[4] Save for obtaining the resignation of the first defendant, the plaintiffs’ claims failed in their entirety.
[5] Costs issues were considered by Gendall J in a judgment of 28 July 2022.3 The plaintiffs appealed Gendall J’s substantive decision and both parties appealed aspects of the costs decision.4
[6] The first defendant was awarded party and party costs against the plaintiffs along with disbursements totalling $456,442.81. There was also an order that the first defendant was entitled to be indemnified from the assets of the Trust for the difference between party and party costs along with disbursements and the first defendant’s actual paid solicitor and client costs of $1,104,778.38.5
1 McLaughlin v McLaughlin [2022] NZHC 1841 at [14(a)].
2 McLaughlin v McLaughlin [2021] NZHC 3015.
3 McLaughlin v McLaughlin, above n 1.
4 McLaughlin v McLaughlin [2023] NZCA 473.
5 Gendall J reduced the costs awards in the first defendant’s favour by 20 per cent to reflect that he resigned as trustee during the course of the trial, the 20 per cent deduction was reversed by the Court of Appeal,
[7] The second defendant sought indemnification from the Trust (the trustees of which were joined to the proceeding for the purposes of the costs judgment).6 Calculation of the second defendant’s costs was complicated by the fact that up until 16 April 2021, the first and second defendants were represented in this proceeding by Buddle Findlay. I will address the circumstances in which the second defendant came to be separately represented below. That firm’s costs for steps up to 16 April 2021 were shared between the defendants.
[8] Counsel recognised in the costs submissions before Gendall J that it was only when costs orders were made in favour of the first defendant that the second defendant would be able to quantify the balance of its costs for which it would seek an indemnity. This was because with cost sharing in place up to 16 April 2021, the party and party costs obtained by the first defendant were to be shared with the second defendant. While the formal orders listed at the conclusion of the costs judgment do not record an order that the Trust indemnify the second defendant for the balance of its costs once quantified, his Honour said:
[23] In this respect and for completeness, I record my view that [Glasgow Harley Trustee Limited], as an independent former trustee of the Ashley Trust drawn into this litigation largely through no fault on its part, is entitled to be reimbursed for all its reasonable legal costs and disbursements appropriately incurred throughout this long and acrimonious dispute between the members of the McLaughlin family, and in carrying out its functions as such trustee.
[9] Leave was reserved for the second defendant to approach the Court to quantify costs after further calculations were carried out. It is safe to conclude Gendall J was satisfied the second defendant was entitled to be indemnified for its costs not covered by its share of the first defendant’s party and party costs and the party and party costs awarded directly to the second defendant.
[10] Party and party costs between the plaintiffs and the second defendants had been agreed in the sum of $70,980.20 as recorded by Gendall J in his costs judgment.7
6 McLaughlin v McLaughlin, above n 1, at [6].
7 At [28(c)].
Outstanding costs issues
[11] At my request, counsel co-operated in the filing of a joint statement of outstanding issues.
[12] Before I turn to those issues, it is common ground that the first and second defendants are entitled to be indemnified from the Trust fund. It is again common ground that the right to be indemnified is subject to the limitation that such costs must be reasonably and properly incurred. The law in respect of a trustee or former trustee’s right of indemnity is captured in the following statement:8
The limitation on a trustee’s right of indemnity is, however, that the expenses are ‘properly incurred’. The duty to seek advice does not extend, for instance, to pose questions the answers to which are perfectly obvious. Nor where no real and substantial dispute exists. Unnecessary proceedings, or the taking of unnecessary procedural steps needlessly increasing costs, may mitigate (or eliminate) the right of indemnity. Again, excessive costs lie beyond the scope of indemnity …
Outstanding issues
[13]The following issues were identified:
(i)Was it reasonable for the first and second defendants to be separately represented from 16 April 2021 when Morgan Coakle became the solicitor on the record for the second defendant?
(ii)If it was reasonable for there to be separate representation, has there nonetheless been duplication of costs by the defendants?
(iii)If there was duplication, if any, was it unreasonable and improper?
(iv)If it was not reasonable for there to be separate representation, what effect, if any, would that have on the defendants’ entitlement to indemnity?
8 New Zealand Māori Council v Foulkes [2015] NZHC 489 at [31], cited with approval in
Butterfield v Public Trust [2017] NZCA 367, (2017) 23 PRNZ 575 at [21].
Outstanding costs issues: first defendant
[14] The first defendant correctly advised Gendall J of his actual costs referred to at [6] above. However, the costs as awarded by Gendall J were subject to an error. The issues are whether a shortfall exists and if so, if there is any reason precluding the first defendant to be indemnified for the full amount of the shortfall.
Outstanding costs issues: second defendant
[15] The second defendant trustee company received invoices from the law firm Glasgow Harley for $79,538.38 including time incurred by Mr Nelson, a former trustee of the Trust, in attending the hearing and for the briefing of his evidence for the trial. The trust company seeks indemnity for $65,738.35, omitting certain amounts previously claimed.
[16] The agreed issues, as advised by counsel in respect of that matter, are as follows:
(a)Can [the second defendant] charge for Mr Nelson’s time for attending the hearing and for “briefing” evidence in addition to [the second defendant’s] counsel’s costs?
(b)If “yes”:
(i)Should [the second defendant] be entitled to charge rates on a professional solicitor-client basis or is some other rate appropriate?
(ii)Are the costs which are sought to be recovered reasonable?
(iii)Should Mr Nelson have notified the trustees that he would be seeking costs on a professional basis for time spent in addition to [the second defendant’s] counsel’s costs, and if so, what is the consequence of this?9
(iv)What is the consequence, if any, of the other matters raised by the Trustees in their 21 January 2025 letter to the parties?
9 This issue was not addressed by any party at the hearing.
Quantification of quantum of second defendant’s High Court costs to be indemnified by the Trust
[17] Mr Bierre, counsel for the second defendant, in his memorandum dated 18 February 2025, explains that the amount for which indemnity from the Trust is sought by the second defendant in respect of the High Court hearing is $330,581.31. Mr Bierre explained that figure was arrived at by taking the second defendant’s total solicitor-client costs less party and party costs awarded directly to the second defendant (outlined at [10] above) and less an adjustment agreed between the first and second defendants in respect of the party and party costs obtained by the first defendant (outlined at [8] above).
[18] Finally, costs are sought by the second defendant in respect of all steps it has taken to finalise and pursue costs. Mr Bierre explains that costs on the plaintiffs’ appeal to the Court of Appeal are not included, having been agreed separately. Costs from Gendall J’s decision through to the conclusion of this costs hearing, less Court of Appeal costs, are $84,498.00. An indemnity is sought from the Trust for that sum which includes a claim for costs for all steps to finalise costs including the application the subject of this judgment. I deal with costs on costs at the conclusion of this judgment.
The second defendant’s claim for indemnity in respect of the Glasgow Harley invoice
[19] The trial before Gendall J lasted approximately three weeks. Mr Nelson attended two weeks of the hearing. Mr Nelson was the sole factual witness for the second defendant, had been solicitor for the McLaughlin family for an extended period and was one of the original trustees. Mr Nelson gave evidence and was cross-examined. The briefing of Mr Nelson’s evidence took some time and he was involved in trial preparation including explaining to counsel the context of relevant documents and assisting counsel with cross-examination preparation.
[20] Mr Nelson was not a party to the proceeding but given he had been a former trustee, it is not disputed that he had knowledge of key events material to the proceeding.
Are the costs of a witness of fact a reasonable disbursement?
[21] Powell J referring to r 14.2 of the High Court Rules 2016 (the Rules), which deals with the recovery of disbursements, noted the rule does not restrict disbursement claims for witnesses’ expenses to those of expert witness.10 His Honour said:11
In Body Corporate 396711 v Sentinel Management Ltd Woolford J held that although not an expert, the witness was “a professional person entitled to charge. .. for his time”. His Honour allowed disbursement claims for a witness in that case reviewing his brief of evidence prior to the hearing, his attendance at the hearing and his giving of evidence at the hearing. This now appears to be standard practice where a professional is required to give evidence as a witness of fact.
(footnotes omitted)
[22] Powell J went on to say that the question was then whether the invoices were reasonable in amount.
[23] Mr Bierre addressed the extent of Mr Nelson’s attendances by way of further memorandum to the Court dated 19 December 2024. Mr Bierre noted that while the trial was for three weeks, Mr Nelson attended for 10 days of the trial. Mr Bierre submits that Mr Nelson did not simply attend the Court as a spectator, his attendance was on counsel’s advice and request. I have no reason to doubt Mr Bierre’s advice in that regard.
[24] Mr Bierre explains Mr Nelson was in attendance during the plaintiffs’ factual witnesses, in particular that of Mark McLaughlin. I accept it is normal practice for a key witness of fact, save perhaps where there are major credibility issues, to be present during the factual evidence of opposing parties — no order excluding witnesses was made.
[25] Mr Bierre explains that Mr Nelson’s attendance during the second week of the trial was partly extended due to the need to interpose other witnesses based on their availability. Mr Nelson nonetheless had to be present due to the usual unpredictability
10 Trends Publishing International Ltd (in receivership and liquidation) v Callaghan Innovation
[2020] NZHC 1626.
11 Trends Publishing International Ltd (in receivership and liquidation) v Callaghan Innovation, above n [10].
as to exactly when a witness may need to be called, particularly where other witnesses are being interposed.
[26] Included in Mr Nelson’s time for which he seeks reimbursement, is time he spent being briefed by counsel and generally in respect of preparation for trial. As Mr Nelson was the only factual witness on behalf of the second defendant, and given the nature of the litigation as described at [1] above, it is not surprising that Mr Nelson was involved in preparation.
[27] Mr Bierre notes no issue is taken with Mr Nelson’s costs for his time outside of Court. I see no reason to draw a distinction between preparation time pre-trial and time in Court at counsel’s request. Accordingly, I am satisfied that in terms of the principles explained by Powell J, Mr Nelson was entitled to charge for his time as a witness of fact. As I have said, Mr Nelson’s involvement at the hearing was that of the normal attendance of a key witness of fact to assist counsel as the case unfolded.
[28] The rate at which Mr Nelson has charged is well within the range for that of a senior solicitor. Counsel for the plaintiffs does not point to any authority that a witness must use a lower rate for time spent in litigation.
[29] As to whether Mr Nelson’s costs are reasonable, as the only witness of fact for the second defendant, it is not surprising Mr Nelson spent considerable time on preparation. It was not contended by any party that his total costs were unreasonable.
[30] I do not need to address whether Mr Nelson should have notified the trustees he would be seeking recovery of his costs — as noted, such was not pursued at the hearing.
Separate representation
[31] This proceeding was commenced on 24 August 2017. Up until 16 April 2021, the first and second defendants were represented by Buddle Findlay. The second defendant had instructed Morgan Coakle from the outset essentially on a watching brief basis. Mr Bierre, in his memorandum of 18 February 2025, notes the issue of separate representation was not raised with Gendall J when his Honour dealt with costs
in July 2022. As the passage from his Honour’s judgment set out at [8] above is clear, his Honour considered a separate costs award in favour of the second defendant was appropriate. It will be recalled party and party costs were ordered by consent by Gendall J in favour of the second defendant in the 28 July 2022 judgment.
[32] Mr Bierre explains that on 11 September 2020, the plaintiffs filed a second amended statement of claim which, for the first time, introduced a cause of action of breach of fiduciary duty against the second defendant. The essence of the new cause of action was that the first defendant had breached his duties by operating the Trust for his own benefit, and that the second defendant breached its duties by allowing that to happen. Mr Bierre explains it was recognised that if the second defendant was found liable in respect of that cause of action, there was the potential for a conflict to develop between the first and second defendants. This is because, although it is the general position that trustees are equally liable in respect of a breach by one trustee, relevant exceptions exist including where a trustee receives a personal benefit from a breach of trust which the other trustee did not actively participate in, then indemnity may be claimed by the trustee which did not receive the benefit against the trustee who did.
[33] Further, a trustee — beneficiary may be required to indemnify his or her co-trustee to the extent of his or her beneficial interest. That property is taken first to meet the claim against the trustees. It is only if the loss exceeds the beneficial interest of the defaulting trustee that the trustees share the surplus loss equally.
[34] These principles meant the second defendant could argue that the first defendant ought to indemnify it, should there be an adverse judgment. This resulted in the second defendant filing a cross-claim on 22 April 2021 against the first defendant seeking indemnity and/or contribution from the first defendant in respect of the plaintiffs’ claim. The first defendant cross-claimed against the second defendant. While, by agreement the cross-claims were to be deferred until after the main hearing (if required), nonetheless it is clear the first and second defendants’ interest did not entirely overlap from that point.
[35]Rule 14.15 of the Rules provides:
14.15Defendants defending separately
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a)several defendants defended a proceeding separately; and
(b)it appears to the court that all or some of them could have joined in their defence.
[36] In considering r 14.15, the learned authors of McGechan on Procedure provide that the Court assesses realistically whether there is a common or overlapping interest and the extent of that interest.12 Whether the parties took legal advice as to the appropriateness of separate or joint representation is also considered, as is the extent to which the parties could have relied on the evidence or submissions of another.13
[37] In my view, it was prudent and responsible once the plaintiffs claim was amended for the defendants to protect themselves by way of their respective cross-claims. The fact that the future of the cross-claims was left to be assessed at the conclusion of the plaintiffs’ claim did not mean that a conflict of interest ceased to exist.
[38] Mr Bierre’s submissions explain the efforts taken by the defendants to avoid duplication of costs. While the issue of duplication of costs was not expressly raised before Gendall J, I have no doubt that if his Honour had any concerns in that regard, he would have raised them himself. Again, his Honour’s emphatic comments about the nature of the litigation and the passage set out at [8] above, show his Honour was in no doubt as to the second defendant’s right to be indemnified.
[39] Ms Low, counsel for the plaintiffs, in attempted in a schedule to identify where there has been duplication of costs by comparing the invoices of the two law firms. The exercise is not straightforward.
12 Jessica Gorman (ed) and others McGechan on Procedure (online ed, Thomson Reuters) at [HR14.15.02(a)].
13 Jessica Gorman, above n 12, at [HR14.5.02(d)-(e)].
[40] There is never going to be a bright line between the work undertaken by legal teams for separate defendants whose interests may substantially, but not entirely, overlap. Responsible counsel in that situation will attempt to divide up tasks between them but the very process of dividing up work may itself create extra costs. All counsel have to consider the issues that arise, how they are going to be addressed, by which counsel and seek feedback on how that work will be undertaken. None of that happens in a vacuum. Each counsel needs to know what is being undertaken in respect of tasks assigned between defendants’ counsel and may well want to have input or feedback into what is proposed. As I have said, complete delineation of tasks is not possible.
[41] Once there was a cross-claim between defendants there was, in terms of r 14.15 of the Rules, good reason to allow more than one set of costs. The fact that both defendants were represented by one counsel until that occurred shows that counsel had turned their minds to the issue of separate representation. With the amended statement of claim, the second defendant was entitled to consider its own position as regards the first defendant and vice versa resulting in the cross-claims already noted.
[42] Conflicts of interest are best recognised early before steps are taken that might prejudice either defendant when they are jointly represented. I am quite satisfied it was proper for both defendants to be separately represented.
[43] What then of the possibility of there being duplication between the expenses incurred by the separate defendants? As I have said, some duplication is inevitable once there are separately represented defendants.
[44] I do not intend to undertake a line-by-line review of the invoices to identify where there may have been potential duplication. Requiring counsel representing separate parties whose interests do not entirely overlap to constantly co-operate over the division of tasks will of itself create unnecessary costs. A party who sues multiple defendants whose interests do not overlap as a result of the way the claim is framed, must face the costs consequences of their claim requiring defendants to be separately represented. It was the plaintiffs’ amendment to the statement of claim that prompted the cross-claims and the need for separate representation. The plaintiffs were aware of that from 16 April 2021. As I have said, a trustee is entitled to be indemnified for
their costs and I do not consider the value of that indemnity should be eroded through an exercise of comparing defendants’ invoices with the benefit of hindsight.
[45] I do not consider any duplication that may have occurred to have been unreasonable or improper.
The shortfall error in the first defendant’s costs
[46] All parties agree that an arithmetical error occurred in Gendall J’s costs decision in respect of the calculation of the indemnity costs the first defendant was entitled to. Again, the indemnity costs the first defendant sought from the Trust were his actual solicitor-client costs plus disbursements, less recoveries from the plaintiffs on a party and party basis, including disbursements, to arrive at a shortfall. However, it appears that in the course of calculating the value of the indemnity, that is the shortfall between actual solicitor-client costs and disbursements and the amounts to be paid by the plaintiffs, disbursements were deducted twice. Again, that such an error has occurred is accepted by all parties.
[47] While Gendall J’s costs decision was sealed and the costs payable under that judgment as amended on appeal have been paid, no party suggested there were jurisdictional issues in addressing the shortfall.
[48] While the Court of Appeal decision which reversed Gendall J’s 20 per cent deduction did not expressly avert to the arithmetical error. The Court said:14
The High Court’s imposition of a 20 per cent discount on the costs and disbursements otherwise payable to the first respondent by the appellants and the Trust is quashed, but in all other respects the High Court’s decision on costs is affirmed.
[49] Mr Peers, counsel for the first defendant, submitted this was confirmation by the Court of Appeal of the “costs and disbursements otherwise payable” to the first defendant.
14 McLaughlin v McLaughlin, above n 4, at [207]
[50] Whether the jurisdiction for addressing the shortfall is based on all parties agreeing an error has occurred, effectively permitting correction by consent, a recall of the sealed order again on the basis that all parties accept an error occurred, or the Court of Appeal paragraph referred to does not matter; a jurisdictional basis to correct the error exists.15
[51] Accordingly, there is no barrier to an order that the Trust is to further indemnify the first defendant in the sum of $125,051.66.16
First defendant’s costs since Gendall J’s costs decision
[52] As I have already said, Gendall J’s decision was appealed to the Court of Appeal where the plaintiffs failed and the cross-appeal in respect of the 20 per cent discount as to the costs awarded to the first defendant, succeeded. The first defendant was awarded party and party costs in the Court of Appeal, leaving a shortfall in respect of his actual costs on that appeal for which he seeks to be indemnified.
[53] The plaintiffs applied for leave to appeal to the Supreme Court which was declined.17 Again, taking into account the party and party costs award on the leave application, there is a shortfall in respect of the first defendant’s actual costs in relation to the leave application for which he seeks to be indemnified.
[54] Further, there is a sum sought by the first defendant partly in the nature of costs on costs since 15 February 2024 (the date of the Supreme Court judgment) for advice in dealing with all outstanding issues.
[55] Finally, there is a claim for indemnity costs in respect of all further costs through to the completion of this application.
15 It is necessary to find a jurisdictional basis to correct the error as there is an argument that when a costs judgment is sealed and paid the power to address the shortfall is extinguished by merger in judgment and/or payment — see Calderwood v The Nominal Defendant [1970] NZLR 296 (CA). However, it would be inequitable not to recall Gendall J’s decision when all parties agree an error has occurred and no jurisdictional issue was taken by any party.
16 This figure is the first defendant’s net shortfall being less than the double deducted disbursements. No issue was taken with this calculation.
17 McLaughlin v McLaughlin [2024] NZSC 11.
[56] The breakdown is set out in memorandum of counsel for the first defendant dated 7 November 2024 and is as follows:
(a)$37,315.38 for costs and disbursements arising after the 2022 costs judgment (this covers invoices from 29 July 2022 to 31 May 2023);
(b)$284,024.39 for shortfall of costs incurred in respect of the Court of Appeal proceeding;
(c)$37,254.35 for shortfall of costs incurred in respect of the Supreme Court proceeding;
(d)$21,238.58 for costs incurred after 15 February 2024 (the date of the Supreme Court judgment) (invoices 27 June 2024 and 31 July 2024). Largely this relates to dealing with outstanding costs issues, various correspondence with trustees and parties in relation to this, and preparing a preliminary draft memorandum of costs.
[57] The final amount sought for costs concerns all ongoing costs of the first defendant including the costs of this application of $72,395.38 including GST.
[58]No party took issue with the reasonableness of the above costs.
[59] Ms Low, while advising that her clients’ formal position was that they abided the decision of the Court, essentially asked the Court to ensure that there was no duplication in the above costs.
[60] That point can be shortly addressed. After the commencement of the appeal to the Court of Appeal the plaintiffs withdrew the appeal as against the second defendant and the second defendant’s costs in respect of the appeal were resolved by agreement. No duplication between the costs covered by that payment and the costs claimed by the first defendant in respect of the appeal to the Court of Appeal have been identified. With the appeal against the second defendant not progressing, all steps thereafter were undertaken by the first defendant therefore there cannot have an element of duplication with the second defendant.
[61] In the absence of any issue being taken with the quantum of the costs and with there being no dispute that the first defendant is entitled to be indemnified in respect of costs arising from his actions as trustee, there is an order that the Trust indemnify the first defendant in the sums referred to at [56] and [57] above.
[62] Mr Forsey, counsel for the Trust, advised that his client’s general position is that it will abide the decision of the Court. The Trust’s concern was to ensure that there was no argument as to whether the costs were reasonably incurred. Other than the issue in respect of separate representation/duplication addressed above, there is no challenge to the costs claims in any event. The shortfall error (which all parties have acknowledged), was intended to be included in Gendall J’s costs judgment but was omitted by an arithmetical error already noted.
Costs on costs
[63] The hearing on 19 February 2025 to determine costs was set down at a telephone conference on 11 December 2024. The costs issue originally came before the Court in October 2024 with Harland J setting a timetable to respond to the second defendant’s costs memorandum of 16 October 2024. Ms Low, while not expressly resisting the application for costs in respect of this judgment, suggested that had her clients been approached by the other parties earlier seeking to agree costs, the hearing might have been avoided.
[64] Given the background to this litigation and its nature as described at [1] above, Ms Low may well have been optimistic in that suggestion. But the reality is, once the need to finalise costs was raised and with the trustees understandably being reluctant to accept claims for costs in the absence of agreement from all parties, the onus was really on the plaintiffs to signal whether they disputed costs or not. That said, the plaintiffs’ position before me on 19 February 2025 was that they abided the decision of the Court and Ms Low described their position as attempting to assist the Court.
[65] The short point is that the first and second defendants have been successful in having the costs they sought confirmed by the Court. Critically, there was no disagreement as to the reasonableness of the fees charged (Buddle Findlay’s invoices
to the first defendant were directed to be provided unredacted). The plaintiffs raising issues for the Court to consider meant a hearing had to occur.
[66] I see no reason to depart from the normal principle that costs should follow the event hence the order at [61] that the first defendant is to be indemnified for the sums at [56] and [57] which includes the costs of this application. The first defendant was successful in obtaining the orders he sought.
Claim for costs on costs by second defendant
[67] Mr Forsey took me through the timeline of the second defendant’s explanation of Mr Nelson’s attendances. Originally, Mr Nelson’s invoice was provided in redacted form. An unredacted invoice was always going to be required. Mr Forsey explains the trustees’ efforts to seek clarification of Mr Nelson’s attendances when no response was forthcoming through November and into December 2024. An unredacted copy of the invoice and some explanation in respect of the invoice was provided in late December 2024. Mr Bierre acknowledged that some of Mr Nelson’s narrations on the invoice were unhelpful and that there had been delay in providing explanations in respect of Mr Nelson’s invoice.
[68] Accordingly, I am satisfied there is an element of costs claimed by the second defendant that should not properly be payable by the Trust. Mr Nelson’s invoice should have been provided in unredacted form from the start, along with an explanation as to what the costs related to, particularly given the acknowledgement that some of the narrations were ambiguous. Rather than attempt any precise adjustment for these costs which should not have been incurred, there is a deduction from the second defendant’s claim of $84,498 for costs post the High Court judgment of 9 November 2021 of $5,000 including GST. There is an order accordingly.
[69] Leave is reserved to apply further in the event any of the issues raised in the memoranda of counsel have not been addressed.
Associate Judge Lester
Solicitors:
Buddle Findlay, Christchurch Duncan Cotterill, Christchurch Morgan Coakle, Auckland Hannan Seddon, Greymouth
Copy to counsel:
A A H Low, Barrister
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