Moeke v Eparaima
[2025] NZHC 611
•24 March 2025
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2023-463-30
[2025] NZHC 611
BETWEEN FORD BENJAMIN MOEKE
Plaintiff
AND
VANESSA EPARAIMA,
CONSTANCE HUI, JOHN SPENCER, and JOHNATHAN MICHAEL STOKES
First DefendantsJENNY SHATTOCK, JEFF GASH, MARIN GLUCINA, BILL MACHEN, ARAMA NGAPO-LIPSCOMB,
PETER SCHULTE,
HERMAN VAN ROOIJEN and ADRIENNE BELL
Second Defendants
BENJAMIN ERIC SMIT
Third DefendantHAMISH DOUCH
Fourth DefendantMIKE BRACKEN
Fifth Defendant
Hearing: On the papers Appearances:
G J Judd KC/K J Patterson for the Plaintiff
W A Holden/M A Cavanaugh/E Abbot for the First Defendants D Nielsen for the Second Defendants and the Third Defendant M J Fisher/Y T Yoon/P H Fisher for Messrs Glucina van Rooijen J S Gurnick/D Nielsen for Second Defendant, Mr Bill Machen Michael Parker/Juliet Eckford for the Fourth Defendant
T M Braun for Mr Mike Bracken, Fifth Defendant
Judgment:
24 March 2025
MOEKE v EPARAIMA [2025] NZHC 611 [24 March 2025]
COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
This judgment was delivered by me on 24 March 2025 at pursuant to Rule 11.5 of the High Court Rules 3:00pm …………………………. Registrar/Deputy Registrar
TABLE OF CONTENTS
Paragraph
Procedural history [1] Costs sought [6] Legal principles
[8]
First Defendants’ position
[12]
First, Fourth, Fifth, Sixth and Eight-named Second Defendants and Third Defendant’s position [18] Fourth-named Second Defendant’s position [22] Fourth Defendant’s position [25] Fifth Defendant’s position [28] Messrs Glucina and van Rooijen’s position [29] The Plaintiff ’s position [32] Defendants’ arguments [35] First Defendants [35](a) First, Fourth to Sixth and Eighth-named Second Defendant and the Third Defendant [35](b) Fourth and Fifth Defendants [35](c) Messrs Glucina and van Rooijen [35](d) Result
[37]
Orders
[39]
Procedural history
[1] The plaintiff successful obtained summary judgment against Raukawa Iwi Development Limited (RIDL) and the South Waikato District Council (SWDC) in earlier proceedings (CIV-2019-463-46) (the Liability Judgment).1
1 Moeke v Raukawa Iwi Development Ltd [2019] NZHC 3166.
[2] The plaintiff sought to join the defendants in this proceeding as defendants in the CIV-2019-463-46 proceeding. The plaintiff’s application for joinder was declined by a judgment of the Court issued on 1 February 2023 (the Joinder Judgment).2
[3] The plaintiff, when filing these proceedings against the individuals at RIDL and SWDC and their respective solicitors involved in the relevant transactions, at the same time applied for summary judgment as to their alleged liability as co-conspirators with RIDL and SWDC to defraud the plaintiff. The plaintiff relied on the Liability Judgment against RIDL and SWDC as the basis for liability, and alleged the individuals are estopped by res judicata from raising the defences to the liability. The defendants opposed the summary judgment.
[4] The plaintiff required the third-named second defendant and the seventh- named seventh defendant (Messrs Glucina and van Rooijen) to seek leave to file opposition to the summary judgment applications against them. The plaintiff opposed the leave applications. The Court, pursuant to r 12.9 of the High Court Rules 2016, granted those defendants leave to file opposition to the plaintiff’s summary judgment in a judgment dated 4 July 2024 (the Leave Judgment).3 The plaintiff then sought leave to appeal the Leave Judgment to the Court of Appeal. The Court dismissed the plaintiff’s application for leave to appeal (the Appeal Judgment).4
[5] Following the Appeal Judgment, the plaintiff elected to abandon the summary judgment applications against the defendants.
Cost sought
[6] The defendants (other than Messrs Glucina and van Rooijen) now seek costs in respect of the abandoned summary judgment applications against them. Messrs Glucina and van Rooijen seek costs for successful leave applications under r 12.9 to file notices of opposition to the plaintiff’s summary judgment application and for their successful opposition to the plaintiff ‘s leave to appeal application.
2 Moeke v Raukawa Iwi Development Ltd and Anor [2023] NZHC 7.
3 Moeke v Eparaima & Ors [2024] NZHC 1767.
4 Moeke v Eparaima & Ors [2024] NZHC 3119.
[7]The following memoranda as to costs have been filed:
(a)by counsel for Messrs Glucina and van Rooijen, dated 5 December 2024;
(b)by counsel for the fourth defendant, dated 20 February 2025;
(c)by counsel for the first defendants, dated 21 February 2025;
(d)by counsel for the first, fourth, fifth, sixth and eight-named second defendants and the third defendant, dated 21 February 2025;
(e)by counsel for the fifth defendant dated 21 February 2025;
(f)by counsel for the plaintiff dated 27 February 2025;
(g)by counsel for Messrs Glucina and van Rooijen in reply dated 28 February 2025;
(h)by counsel for the first, fourth, fifth, sixth and eighth-named second defendants and the third defendant in reply dated 3 March 2025.
Legal principles
[8] Rule 14.1 of the High Court Rules 2016 (the Rules) provides the Court with the discretion to order costs in relation to a step taken in a proceeding, with such discretion to be exercised in accordance with rr 14.2 to 14.10.
[9] Rule 14.8, which provides that costs on an opposed interlocutory application must be fixed when the application is determined, does not apply to applications for summary judgment.5
5 Rule 14.8(3) of the Rules.
[10] The general approach adopted is that, where a plaintiff is unsuccessful in the application for summary judgment, costs will be reserved.6 However, where the application has been brought erroneously, unreasonably, in circumstances where the plaintiff knew or ought to have known that summary judgment would not be granted or, as an experiment, costs may be awarded against the unsuccessful plaintiff.7
[11] Rule 12.15 provides the plaintiff may discontinue an application for summary judgment by filing a memorandum that records the plaintiff is discontinuing the application.
First defendants’ position
[12] The first defendants submit that the plaintiff’s application for summary judgment was flawed from the outset, with the elements of the claim inevitably capable of argument and the summary judgment process was wholly unsuitable to determine liability.
[13] Counsel for the first defendants points to the following paragraph from the Joinder Judgment:8
[58] In my view, the important consideration in relation to this application is that the [Summary] Judgment does not consider the liabilities of the individual officers, trustees or elected members of the Council in tort, nor the liability of solicitors in the conspiracy. In other words, the [Sumary] Judgment did not consider the liability of the proposed additional defendants. While Mr Patterson has argued that the proposed additional defendants are privies to Raukawa and the Council respectively, and therefore should be estopped from denying the tortious conspiracy for fraud liability findings in the [Summary] Judgment, this is not established and a summary judgment application or trial is necessary to establish any such liability. Such a proceeding is effectively a new proceeding and is not part of establishing the quantum of Raukawa and the Council’s liability in this proceeding. Accordingly, there is no clear basis on which the proposed additional defendants “ought” to be joined until their individual liability has been established.
6 NZI Bank Ltd v Philpott [1990] 2 NZLR 403.
7 Air Nelson Ltd v Airways Corporation of NZ Ltd (1992) 6 PRNZ 1 (CA); Srinagar Ltd v Horowhenua District Council [2022] NZHC 1094; and Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co. Ltd [2016] NZHC 1244.
8 Joinder Judgment, above, n 2 at [58].
[14] Counsel for the first defendants submits that the plaintiff elected to repeat precisely the same grounds in support of the summary judgment referring to the Liability Judgment and the individuals connected to SWDC and RIDL, and no new grounds were advanced by the plaintiff. He submits that the Court expressed the same concerns in the Leave Judgment,9 and similar concerns were repeated by the Court in the Appeal Judgment.10
[15] Counsel for the first defendants submits that in the circumstances the Court ought to exercise its discretion to award costs in the defendants’ favour. He submits the plaintiff elected to pursue a flawed position from the outset in the face of clear findings of this Court in the Joinder Judgment and the plaintiff knew or ought to have known that the summary judgment was unsuitable.
[16] The first defendants are seeking costs on a 2B basis (quantified at $10,885.56) and also increased costs on the basis that the plaintiff has contributed unnecessarily to the time and expense of the proceeding by:
(a)pursuing arguments without merit, where the lack of those merits had already been identified to the plaintiff by the Court;11
(b)failing to accept a legal argument as articulated by the defendants’ notice of opposition.12
[17] The first defendants seek an increase in costs of 75 per cent, and quantify the increased costs as $18,931.25 (including disbursements of $130.56).
First, Fourth, Fifth, Sixth and Eighth-named Second Defendants and Third Defendant’s position
[18] Counsel for the first, fourth, fifth, sixth and eighth-named second defendants and the third defendant (Defendant Group) submits that costs in relation to the plaintiff’s summary judgment application must be considered, in addition to the
9 Leave Judgment, above n 3, at [41] and [42].
10 Appeal Judgment, above n 4 at [30](a) to (e).
11 r 14.6(3)(b)(ii), High Court Rules 2016.
12 r 14.6(3)(b)(iii), High Court Rules 2016.
position under rr 14 and 12.15, under r 15.23 of the Rules which provides that a plaintiff who discontinues the proceeding must pay costs to the defendant up to the date of the discontinuance, unless the parties otherwise agree or the Court orders otherwise. He submits there is a general rule the Court will not consider the merits of the parties’ positions when considering costs on a discontinuance and the presumption that a defendant is entitled to costs will only be displaced if there are circumstances rendering it just and equitable that the presumption should not apply.
[19] Counsel for this Defendant Group refers to the plaintiff’s memorandum discontinuing the application for summary judgment, where counsel for the plaintiff observed that:
For the reasons canvassed in submissions, most recently submissions in support of the application for leave to appeal to the Court of Appeal, summary judgment applications are doomed to failure in respect of many if not all of the defendants.
Counsel for this Defendant Group submits that under r 15.23 costs should be ordered in favour of the defendants and there is no basis to upset the presumption. He submits that it has been the position of the defendants that the summary judgment proceedings amounted to an abuse of process following the Joinder Judgment, and refers to the same passage in the Joinder Judgment as counsel for the first defendants.13
[20] Counsel for this Defendant Group submits that the plaintiff, in his summary judgment application, simply re-pleaded his position in the Joinder proceeding. He submits that rather than lead evidence as to why the defendants were liable in tortious conspiracy, the plaintiff relied on the Liability Judgment to support the summary judgment application. He submits that the plaintiff elected to pursue the summary judgment application in this way without leading any substantive evidence, despite the clear findings of the Court in the Joinder Judgment, and accordingly submits that the application for summary judgment was brought unreasonably, in circumstances where the plaintiff knew or ought to have known that summary judgment would not be granted, or as an experiment. Accordingly, he submits costs should be awarded against the plaintiff.
13 Joinder Judgment, above n 2, at [58].
[21] This Defendant Group seeks costs on a 2B basis of $11,711.00 and disbursements of $110.00.
Fourth-named second defendant’s position
[22] Counsel for the fourth-named second defendant (Mr Machen) seeks costs in respect of Mr Machen’s successful application for leave to file notices of opposition pursuant to r 12.9 of the Rules, and his successful opposition to the plaintiff’s application for leave to appeal.
[23] Mr Machen seeks costs in respect of the application for leave under r 12.9 on a 2B basis of $5,616.50 together with disbursements of $500.00 totalling and
$6,116.50.
[24] Mr Machen seeks costs in respect of his successful opposition to the plaintiff‘s application for leave to appeal on a 2B basis of $3,226.50 together with disbursements of $143.00, totalling $3,369.50.
Fourth defendant’s position
[25] Counsel for the fourth defendant is seeking costs in respect of the plaintiff’s withdrawn summary judgment application on a 2B basis, together with a 75 per cent increase.
[26] Counsel for the fourth defendant submits that r 14.8(3), which provides that summary judgment applications are not covered by the usual rule of costs that must be fixed when the application is determined, means no rules are in place for determining when costs are payable on a summary judgment application. He submits that the present position is wholly analogous to the situation in Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co. Ltd.14 Counsel describes the situation in that case as circumstances where the plaintiff withdrew its summary judgment after a notice of opposition and evidence filed by the defendants, and costs were awarded in the defendant’s favour on the basis that the plaintiff was at fault in
14 Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co. Ltd [1992] NZLR 403.
applying for the summary judgment and accordingly the contrary position of Philpott15
did not apply.
[27] The fourth defendant seeks increased costs on the basis that the application was without merit and/or the plaintiff failed to accept legal argument articulated in the notice of opposition, relying on r 14.6(3)(b) (ii) and (iii). The fourth defendant seeks 2B costs together with an increase of 75 per cent, quantified at $14,638.75 (including the uplift) together with disbursements of $110.00, totalling $14,748.75.
Fifth defendant’s position
[28] Counsel for the fifth defendant takes a similar position to the fourth defendant and seeks costs in respect of the plaintiff’s withdrawn summary judgment application. On a similar basis to the fourth defendant, the fifth defendant seeks costs on a 2B basis, together with an uplift of 75 per cent. These costs are quantified at $5,019.00 together with disbursements of $153.00, totalling $5,172.00.
Messrs Glucina and van Rooijen’s position
[29] Messrs Glucina and van Rooijen seek costs in respect of their successful application for leave pursuant to r 12.9 of the Rules, and their successful opposition to the plaintiff’s application for leave to appeal.
[30] Counsel for Messrs Glucina and van Rooijen submits that on the basis that the plaintiff has elected not to proceed with the summary judgment applications under r 14.8 the costs associated with the two opposed interlocutory applications must be fixed in accordance with that rule.
[31] Messrs Glucina and van Rooijen are seeking costs assessed on a 2B basis as follows:
(a)in respect of the application for leave, pursuant to r 12.9, costs of
$5,258.00 together with disbursements of $552.50 totalling $5,810.50;
15 Above, n 6.
(b)in respect of the opposition to the plaintiff’s application for leave to appeal, costs of $3,824.00 together with disbursements of $121.50, totalling $3,945.50.
The plaintiff ’s position
[32] Counsel for the plaintiff refers to the Philpott decision and the decision in Srinagar Ltd v Horowhenua District Council16 as espousing authority for the usual position that costs on an unsuccessful summary judgment application are usually reserved.
[33] In relation to the exception to this rule where the procedure was used, erroneously and unreasonably, by way of experiment or certain knowledge of failure, counsel for the plaintiff submits that the situation must be considered at the time the application was commenced and that the circumstances changed after the filing of the application, which changes have no bearing on the considerations relevant to the plaintiff’s decision to apply for summary judgment as they post-dated that decision, but did provide reasons for the plaintiff’s decision not to proceed with the application.
[34] Counsel for the plaintiff submits that abandonment of the summary judgment application was a responsible based on findings made in the ancilliary applications.
[35]In response to the defendants’ arguments, counsel submits:
(a)First defendants
With reference to the first defendants’ reliance on paragraph [58] of the Joinder Judgment, counsel for the plaintiff points out that relevant portions of the Judgment went on to say: “summary judgment application or a trial is necessary to establish any such liability” and that in the Joinder Judgment the Court was addressing the question whether the proposed additional defendants ought to have been joined in that proceeding and not addressing the question
16 Above, n 7.
of liability of the proposed additional defendants, but whether the Liability Judgment applied to them.
(b)First, fourth, fifth, sixth and eighth-named second defendants and the third defendant
Counsel for the plaintiff refutes the assertion that r 5.23 applies in respect of the plaintiff’s discontinuance of the summary judgment application. He points to r 5.23 which applies to “a plaintiff who discontinues a proceeding” and a “proceeding” means any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application”. He submits that an application for summary judgment is an interlocutory application (r 12.4) and accordingly r 15.23 does not apply to the plaintiff’s discontinuance of the summary judgment application.
He also rejects, as with the first defendants, the reliance on paragraph [58] of the Joinder Judgment.
(c)Fourth and fifth defendants
Counsel for the plaintiff rejects the fourth defendant’s assertion (also adopted by the fifth defendant) that the case is similar to Emmons Developments New Zealand Ltd decision.17 He submits that in this case the facts are not in any real way in dispute. The dispute concerns whether, as a matter of law, a person knowingly participates in a scheme to deprive the plaintiff who has an interest in the property may be held liable as a participant in a conspiracy to achieve that end.
(d)Messrs Glucina and van Rooijen
Counsel for the plaintiff notes that Messrs Glucina and van Rooijen are only seeking costs in respect of the successful application under r 12.9, and the successful opposition to the application for leave to appeal. He submits that the decision in each of these cases was to reserve costs and, that decision
17 Above, n 14.
having been made, the defendants cannot now apply for costs. He submits the resolution of the incidence and quantum of costs in these applications must await a substantive hearing.
[36] In summary, counsel for the plaintiff submits that costs should be reserved, to be dealt with as part of resolution of the substantive proceeding.
Result
[37] In my view, each of the defendants should be awarded costs against the plaintiff as sought, except increased costs where sought are not justified, and the cost awards should be made on a 2B basis.
[38] My views in relation to the issues raised by the respective counsel for the defendants and by counsel for the plaintiff are:
(a)It is accepted that the usual position, as set out in the Philpott decision, that in relation to an unsuccessful summary judgment application is that costs are usually reserved. This is subject to the exception that where the application has been brought erroneously, unreasonably, in circumstances where the plaintiff knew or ought to have known the summary judgment would not be granted, or, as an experiment, when costs may be ordered against the unsuccessful plaintiff;
(b)view the plaintiff ought to have known that summary judgment would not be granted from the concerns expressed by the Court in the Joinder Judgment. While the Joinder Judgment did indicate that either a summary judgment or trial would be necessary to establish the liability of the proposed additional defendants in the joinder application, the Joinder Judgment made clear that the Court’s view was that the Liability Judgment did not establish liability of the individuals which the plaintiff sought to join in those proceedings, and could not be relied upon as sufficient to establish liability of individuals without more;
(c)as to the issue relating to the application of r 15.23, while the submission of the plaintiff is technically correct that this rule does not apply to the discontinuance of an interlocutory summary judgment application, the general principle set out in r 15.23 can be applied by analogy to discontinuance of an interlocutory application.18 It is therefore relevant in considering the present applications for costs made by the defendants;
(d)as to the argument in respect of Messrs Glucina and van Rooijen that the costs were reserved in the application for leave pursuant to r 12.9 and the opposition to the plaintiff’s application for leave to appeal, costs were reserved on the basis that they would be dealt with in the summary judgment application. As the summary judgment application has been withdrawn, then costs on both applications should be fixed in accordance with r 14.8(1);
(e)the defendants have sought increased costs relying on r 14.6(3)(b)(ii) and (iii). In my view, increased costs are not justified under this rule as the plaintiff’s arguments in relation to the defendants’ liability as joint tortfeasors; the application of the res judicata principle to the defendants as privies to RIDL and SWDC; and the argument relating to the non-application of the rule in Said v Butt were not so unreasonable as to justify increased costs. Accordingly, costs are assessed on a 2B basis, without uplift.
Orders
[39]I order the plaintiff to pay the following costs:
(a)to the first defendants in respect of opposing the plaintiff’s withdrawn summary judgment application, costs of $10,755.00 together with disbursements of $130.56, totalling $10,885.56;
18 M V Celebre Ltd v Airwork Flight Operations Ltd [2015] NZHC 1400 at [9].
(b)to the first, fourth, fifth, sixth and eighth-named second defendants and the third defendant, in respect of opposing the plaintiff’s withdrawn summary judgment application, costs of $11,711.00 together with disbursements of $110.00, totalling $11,820.00;
(c)to the fourth-named second defendant in respect of the fourth-named second defendant’s successful application for leave pursuant to r 12.9 and his successful opposition to the plaintiff’s application for leave to appeal, costs of $5,616.50 together with disbursements of $500.00, totalling $6,116.50;
(d)to the fourth defendant in respect of opposing the plaintiff’s withdrawn summary judgment application, costs of $8,365.00 together with disbursements of $110.00, totalling $8,475.00;
(e)to the fifth defendant in respect of opposing the plaintiff’s withdrawn summary judgment application, costs of $2,868.00 with disbursements of $253.00, totalling $3,121.00;
(f)to the third-named and seventh-named second defendants in respect of their successful application for leave pursuant to r 12.9, and their successful opposition to the plaintiff’s application for leave to appeal, costs of $9,082.00 together with disbursements of $1,348.00, totalling
$10,430.00.
…………………………….. Associate Judge Taylor
Solicitors:
Ken J Patterson, Tauranga, for the Plaintiff
Neilsen Law (David Nielsen), Hamilton, for Mr Bill Machen, Second Defendant
Clancy Fisher Oxner & Bryant (Paul Fisher), Tokoroa, for Mr Marin Glucina and Mr Herman van Rooijen
Counsel:
Gary J Judd KC, Kerikeri, for the Plaintiff
Michael J Fisher/J Yoon, Erskine Chambers, Auckland, for Mr Marin Glucina and Mr Herman van Rooijen James Gurnick, Riverbank Chambers, Hamilton, for Mr Bill Machen, Second Defendant
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