Monnery v Parsons

[2019] NZHC 327

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-482

[2019] NZHC 327

BETWEEN

PAUL MARK MONNERY

First plaintiff

PAUL MARK MONNERY and JULIE ANN MONNERY

Second plaintiffs

AND

ANDREW GRAHAM PARSONS

First defendant

JOHN MURRAY CREIGHTON
Second defendant

BRUCE GORDON COPELAND
Third defendant

KURT BRUDENBECK

Fourth defendant

MURRAY CHARLES PARSONS
Fifth defendant

Continued over

Counsel:

C Carruthers QC and J Tizard for plaintiffs

P Chisnall and J Haig for first and sixth defendants D J Chisholm QC and J Ryan for third, seventh and eighth defendants

G Bogiatto for fourth, fifth and ninth defendants

Judgment:

4 March 2019

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

MONNERY v PARSONS [2019] NZHC 327 [4 March 2019]

AND

PUSH DEVELOPMENTS LIMITED

Sixth defendant

SANDFIELD ASSOCIATES LIMITED
Seventh defendant

SANDFIELD VENTURES LIMITED
Eighth defendant

P K B INVESTMENTS LIMITED

Ninth defendant

[1]                  In my judgment dated 19 December 2018 I dealt with three applications pursuant to r 5.45 for orders for security for costs. The applications were made by the first and sixth defendants, the third, seventh and eighth defendants and the fourth, fifth and ninth defendants. Each of those groups of defendants sought $100,000 or more by way of security for costs. Collectively, they sought $350,000. I ordered that the plaintiffs pay security for costs of $25,000 before the case is set down for trial and a further $25,000 three months prior to trial.

[2]                  All three groups of defendants now seek costs in relation to those interlocutory applications. Their applications are opposed by the plaintiffs.

[3]                  One aspect of my earlier judgment calls for clarification in the light of the submissions made on behalf of the three groups of defendants in support of their applications for costs.

[4]                  The three groups of defendants each made their own application. However, as I explained in my judgment, I understood, following an exchange during the course of the hearing with Mr Chisnall for the first and sixth defendants, that the defendants sought only one global order for security for costs. In their submissions in support of their clients’ applications for costs now before the Court, Mr Chisnall, Mr Chisholm for the third, seventh and eighth defendants and Mr Bogiatto for the fourth, fifth and ninth defendants all say that I was mistaken in that understanding. I must have been. However, no harm was done because, as I said in my judgment, even if I was wrong

and the three groups of defendants were pursuing independent orders for security for costs, I would nevertheless have only made one global order.

[5]                  The scheme of pt 14 of the High Court Rules is that costs are always a matter for the Court’s discretion, but in interlocutory proceedings, generally:

(a)Costs are to be resolved at the conclusion of the relevant interlocutory stage;

(b)Costs follow the event — the successful party is entitled to an award of costs;

(c)Costs are awarded on the basis of the scales provided for in the Rules.

[6]Those principles are not readily departed from.

[7]                  Mr Carruthers for the plaintiffs suggests that the Court should depart from them here to the extent either of declining to make any order as to costs or reserving costs. The bases upon which Mr Carruthers makes that submission are the plaintiffs’ impecuniosity (which of course was one of the factors on which they relied in resisting any order for security for costs in the first place) and the fact that the defendants enjoyed only a measure of success — in the sense that, although, between them, they sought security for costs totalling $350,000, I awarded only $50,000.

[8]                  Although the plaintiffs did not offer evidence of their financial positions, something I criticised in my earlier judgment, and which influenced the outcome, I accept that there is evidence, albeit of a very general nature, pointing to the plaintiffs’ impecuniosity, and I was told from the bar during the course of the hearing that they are not in a position to fund the litigation. My order was intended to balance the legitimate interests of the defendant applicants in obtaining a measure of security in relation to the costs of the litigation and the equally legitimate interests of the plaintiffs in bringing their claim to the Court. In ordering the plaintiffs to pay $25,000 when their case is set down for trial and a further $25,000 three months prior to trial, it was my intention to give the plaintiffs an opportunity to consider whether they wished to

persist with their claim — a claim which I observed in my judgment did not appear to me to be strong — in the knowledge that if they elected to do so they would be obliged to find sufficient funds to pay security for costs, and also give them time in which to make the necessary arrangements.

[9]                  Those objectives would be undermined by an order for the payment of costs at this stage of the magnitude sought by the three groups of defendants — over $25,000.

[10]              In the unusual circumstances of this case, I have come to the view that, although, prima facie, the defendants are entitled to costs, the interests of justice would be best served by reserving costs. I expressly record that they can be revisited at the conclusion of the litigation, however that conclusion comes about. That approach appears to me to be consistent with MacKenzie J’s approach and reasoning in Pickard v Ambrose, HC, Wellington, 13 August 2009.

Associate Judge Johnston

Solicitors:

Oakley Moran, Wellington for plaintiffs

Macalister Mazengarb, Wellington for first and sixth defendants

Claymore Partners Ltd, Auckland for third, seventh and eighth defendants George Bogiatto, Auckland for fourth, fifth and ninth defendants