Memlink v Haines - [2021] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-497

[2021] NZHC 2570

BETWEEN
HARRY MEMELINK

CISCA FORSTER (as trustee of The Link Trust (No. 1)
Plaintiffs

AND

QUENTIN STOBART HAINES

First Defendant

BPE TRUSTEES (NO 1) LIMITED

Second Defendant

QUENTIN HAINES PROPERTIES LIMITED

Third Defendant

Hearing: 24–25 June 2021. Submissions 2 and 8 July 2021

Appearances:

D G Livingston for the Plaintiffs D K Evans for the Defendants

Judgment:

29 September 2021

JUDGMENT OF GRICE J

(costs)

[1] Following the granting of summary judgment for liability and dismissal of application for strike out in relation to the counterclaim, I noted that counsel had indicated that I should consider costs as part of the judgment.

[2]I said, in relation to costs:1

[191]At the hearing counsel indicated that they agreed:

1 Memelink v Haines [2021] NZHC 1992 at [191]–[197] [“The Substantive Judgment”].

MEMELINK v HAINES [2021] NZHC 2570 [29 September 2021]

(a)That I should give an indication of the costs I would have awarded on the summary judgment application but not award those, rather, reserve them to be dealt with following determination of quantum or as otherwise agreed.

(b)I should fix an award of costs on the strike out application.

[192] In relation to the summary judgment application I would have awarded costs on the basis of a 2B categorisation. This categorisation was agreed to be appropriate for the proceedings by counsel at the hearing.

[193] While there was an application for payment of a sum of money included in the summary judgment application which was not successful, I do not consider any discount for that unsuccessful application should be made. That application took up little time at the hearing. I do not consider it justifies any discount from the usual 2B award together with disbursements as reasonable.

[194] In relation to the strike out application, while orders for strike out were not made, the applicants were, for all intents and purposes, successful on this application. The presently pleaded first and second cause of action are defective. The fact I have given the defendants an opportunity to amend the pleadings should not disentitle the applicants to costs on a 2B basis.

[195] Accordingly, I award costs on a 2B basis in favour of the plaintiffs on the strike out application, together with reasonable disbursements.

[196] For the purposes of apportioning time over the two-day hearing I would indicate that 80 per cent of the time at hearing was spent on the application for summary judgment and 20 per cent on the application for strike out.

[197]Orders are made accordingly.

[3] Counsel have been unable to agree on how to apportion the balance of the claimable steps for costs. The defendants contend the apportionment should be 80/20 (in favour of the summary judgment). The plaintiffs say they should, in general terms, be awarded 2B costs in full for each step and that when costs are finally dealt with following the liability hearing at…

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 Memlink v Haines

Details

AGLC: Memlink v Haines [2021] NZHC 2570
Case: [2021] NZHC 2570
Decision Date: 29 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, the case of Memlink v Haines involved a dispute between Harry Memelink and Cisca Forster (as trustees of The Link Trust (No. 1)) as plaintiffs and Quentin Stobart Haines, BPE Trustees (No 1) Limited, and Quentin Haines Properties Limited as defendants. The case revolved around a summary judgment application and a counterclaim for which an application to strike out was made. The court had to decide on the appropriate costs to be awarded to the plaintiffs.

The primary legal issues were whether the costs for the summary judgment application and the strike out application should be apportioned based on the time spent on each application and whether the unsuccessful interim payment application should affect the costs awarded. Both parties agreed that the proceedings should be categorised as 2B under the High Court Rules 2016. The court considered the general principles of costs, which provide that the unsuccessful party should pay, and aimed for predictability, consistency, and expediency in the determination of costs.

The court reasoned that the summary judgment application took up 80% of the hearing time, and the strike out application took up 20%. It decided that the costs should be split accordingly, awarding 80% of the costs to the summary judgment application (to be reserved for a later date) and 20% to the strike out application. The court also noted that the time and resource applied to the strike out application was likely less than 20%, but the 80/20 split was fair given the hearing time allocation. The court concluded that the costs calculated by the plaintiffs should be apportioned as 80% for the summary judgment application and 20% for the strike out application, except for costs incurred exclusively for the strike out application, which could be claimed in full for that application.

Orders