Monnery v Parsons

[2024] NZHC 1858

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-482

[2024] NZHC 1858

BETWEEN

PAUL MARK MONNERY

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…

Hearing:

On the papers

Counsel:

C R Carruthers KC and R L Fletcher for Plaintiffs

P R W Chisnall and J D Haig for First and Sixth Defendants J P Nolen for Second Defendant
D J Chisholm KC and J D Ryan for Third, Seventh and Eighth Defendants

G Bogiatto for Fourth, Fifth and Ninth Defendants

Judgment:

9 July 2024

JUDGMENT OF RADICH J

(Costs)

MONNERY v PARSONS [2024] NZHC 1858 [9 July 2024]

… continued

PUSH DEVELOPMENTS LIMITED
Sixth Defendant

SANDFIELD ASSOCIATES LIMITED
Seventh Defendant

SANDFIELD VENTURES LIMITED
Eighth Defendant

P K B INVESTMENTS LIMITED
Ninth Defendant

[1]    The defendants seek costs on their applications to strike out the proceeding – which were withdrawn – and on their subsequent application to adjourn the proceeding, which was successful.

[2]Separate sets of costs awards are sought on both applications.

[3]    The plaintiffs say that there should be no award of costs on either application and that, if any award is to be made, it should be a single award, shared between the defendants.

Background and the underlying decision

[4]    The defendants’ applications to strike out and to adjourn arose out of essentially the same set of facts and circumstances. They are recounted in my decision on the adjournment application of 8 May 2024.1 But, for the purposes of this decision, they may be summarised as follows:

(a)In December 2022, the Court made a set of orders to timetable the proceeding through to a trial which was to commence on 1 July 2024. They included orders  for  the  plaintiffs  to  file  their  evidence  by  19 February and the defendants to file their evidence by 17 April 2024.

1      Monnery v Parsons [2024] NZHC 1123 at [4]–[19].

(b)In June 2023, the Court ordered the plaintiffs to make a set of security for  costs  payments   –   $25,000   on  setting  down,  $40,000  by    15 December 2023, $40,000 by 19 February 2024 and $45,000 by      1 April 2024.

(c)By mid-February 2024, counsel for the plaintiffs had come to understand that, due to an oversight, the steps that were to have been taken by that point in time had been overlooked. The $40,000 due in December had not been paid and the plaintiffs’ evidence had not been filed.

(d)Counsel for the plaintiffs inquired whether counsel for the defendants would agree to an amended timetable. The amended timetable proposed was rejected by the defendants.

(e)Between 11 and 15 March 2024, all defendants applied to strike out the plaintiffs’ claim for the failure to serve evidence or to make the outstanding security for costs payments.

(f)The outstanding security for costs payments were made soon afterwards and, in mid-April 2024, the plaintiffs served 11 briefs of evidence.

(g)As the defaults had been remedied – and as the stay that was in place while security remained unpaid was lifted accordingly – the defendants withdrew their applications to strike out the plaintiffs’ claim. Instead, in late April 2024, they applied to adjourn the trial on the grounds that the late lifting of the stay and the late filing of evidence caused prejudice to such an extent as to render it unjust for the July fixture to be maintained.

[5]    In my decision of 8 May 2024, I granted the application to adjourn the fixture but only by the finest of margins.2 For reasons discussed in my decision, central to the timetabling orders that were in place was the ability of counsel for the defendants to have the period between mid-February and mid-April to prepare evidence and to prepare generally for the proceeding. That time was lost. I found that an abridged timetable to maintain the fixture would result in prejudice that was such as to warrant the adjournment orders.

The claims for costs

[6]    The six defendants are represented in four (for want of a better word) sets: the first and sixth defendants; the second defendant; the third, seventh and eighth defendants; and the fourth, fifth and ninth defendants. Each set of defendants claims a separate award of costs for both the strike-out application and the adjournment application.

[7]    Costs on the strike-out application are sought on a 2C basis, together with disbursements, producing a claim by each set of defendants of $5,280.

[8]    On the adjournment application, the first and sixth defendants seek costs, on a 2B basis, of $7,550.50. It was these parties who led the charge on the adjournment application – filing the application and drafting submissions. The other sets of defendants supported the application, filing memoranda and making appearances. Accordingly, for each of the other three sets of defendants, the costs claims on the adjournment application are for $2,031.50.

Analysis

[9]    I do not see costs as being warranted on the strike-out applications. The defaults to which they related were remedied. Although issues arose from the late filings and payments, the breaches themselves were remedied and a strike-out was most unlikely to have been an appropriate response.

2      Above n 1, at [3].

[10]   As the defendants recognised in withdrawing the strike-out applications, and in pursuing an adjournment application instead, the more appropriate response to remedy the issues that arose was to seek a new trial date.

[11]   There was a case to say that an abridged timetable to the July fixture was an appropriate outcome. However, the resulting prejudice was such that, as I said, the pendulum in the balancing exercise sat marginally in favour of the defendants.3

[12]   Questions of costs, ultimately, are a matter of discretion. The overall objective is to achieve an outcome that best meets the interests of justice.4 In circumstances in which the vehicle to deal with a common set of facts and circumstances proved to be the adjournment application, rather than the strike-out application, I do not see justice as being done if costs were to be considered separately on each application.

[13]   In addition, I do not see it to be appropriate to allow more than one set of costs on the adjournment applications. The first and sixth defendants brought the application to adjourn the trial. An affidavit was filed in support, together with a memorandum of counsel. The application was supported by memoranda for the other sets of defendants. The first and sixth defendants filed submissions in support of the application. Counsel for the other sets of defendants filed further memoranda. Counsel for each set of defendants appeared at the hearing of the adjournment application and made oral submissions. While there may be differences in the positions of each set of defendants on the substantive issues in the proceeding, they were at one on this application.

[14]   In terms of r 13.15 of the High Court Rules 2016, I will award one set of costs. It will be in the sum of $7,550.50, calculated in accordance with the schedule to the costs submissions of the first and sixth defendants. Of that sum, the first and sixth defendants are entitled to 50 per cent and each of the other three sets of defendants is each entitled to 16.66 per cent. The first and sixth defendants are entitled to their filing fee of $500.

3 At [29].

4      Kinney v Pardington [2021] NZCA 174 at [1].

Orders

[15]   The defendants are entitled to an award of costs of $7,050.50, to be distributed between them in accordance with [14] above. The first and sixth defendants are entitled to payment by the plaintiffs of the $500 filing fee.

Radich J

Solicitors:

Woods Fletcher Associates, Wellington for Plaintiffs

Macalister Mazengarb, Wellington for First and Sixth Defendants K3 Legal, Auckland for Second Defendant

Claymore Partners, Auckland for Third, Seventh and Eighth Defendants George Bogiatto, Auckland for Fourth, Fifth and Ninth Defendants