Moeke v Eparaima - [2025] NZHC 611

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 Defendants

JENNY SHATTOCK, JEFF GASH, MARIN GLUCINA, BILL MACHEN, ARAMA NGAPO-LIPSCOMB,

PETER SCHULTE,

HERMAN VAN ROOIJEN and ADRIENNE BELL

Second Defendants

BENJAMIN ERIC SMIT
Third Defendant

HAMISH DOUCH
Fourth Defendant

MIKE 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…

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.

Keep reading for free

Create a free CaseChat account to read Moeke v Eparaima and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NZHC 611
Decision Date: 24 March 2025

CaseChat Overview and Summary

The case of Moeke v Eparaima concerns the costs sought by various defendants in relation to the plaintiff's abandoned application for summary judgment in a dispute over alleged fraudulent activities connected to land transactions. The High Court of New Zealand was tasked with deciding whether the plaintiff's decision to abandon the summary judgment application warranted an award of costs against him, and if so, the appropriate amount and basis for such an award.

The court considered the legal principles surrounding costs on unsuccessful summary judgment applications, noting the general rule that costs are usually reserved unless the application was brought erroneously, unreasonably, or with certain knowledge of failure. The court also examined the defendants' arguments, which included claims that the plaintiff's application was flawed from the outset and that he should have known it would not succeed. The plaintiff, on the other hand, argued that the usual rule of reserving costs should apply, and that any changes in circumstances after the application was filed did not affect his decision to pursue summary judgment.

The court concluded that the plaintiff's decision to abandon the summary judgment application was reasonable given the findings in ancillary applications, but found that the application itself was flawed and brought unreasonably. The court awarded costs to the defendants on a 2B basis, with certain exceptions for increased costs which were deemed unjustified. The court emphasised that the plaintiff should have been aware from the Joinder Judgment that the summary judgment application was unsuitable.

In summary, the court ordered the plaintiff to pay costs to the defendants in various amounts, based on their successful applications for leave to oppose the summary judgment and to appeal the leave decision, as well as for opposing the plaintiff's withdrawn summary judgment application.

Orders