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[1] The defendants seek costs on their applications to strike out the proceeding – which were withdrawn – and on their subsequent application to adjourn the proceeding, which was successful.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

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 Monnery v Parsons

Details

AGLC: Monnery v Parsons [2024] NZHC 1858
Case: [2024] NZHC 1858
Decision Date: 9 July 2024

CaseChat Overview and Summary

In the case of Monnery v Parsons, the defendants sought costs associated with two withdrawn applications: one to strike out the proceeding and another to adjourn the trial. The plaintiffs opposed these costs, arguing for either no award or a single shared award among the defendants. The underlying dispute involved procedural defaults by the plaintiffs, which were subsequently remedied, leading to the withdrawal of the strike-out application and the filing of an adjournment application. The adjournment was granted by the court on narrow grounds, balancing the prejudice to the defendants against the overall interests of justice.

The court examined the nature of the defendants' applications and the circumstances surrounding them. The strike-out application was withdrawn as the defaults were remedied, and the adjournment application was pursued instead. The court found that while the defendants faced some prejudice, the overall remedy lay in an adjournment rather than costs being awarded on the strike-out application. Additionally, the court reasoned that awarding separate costs for each application would not align with the interests of justice, given the common set of facts and the unified position of the defendants on the adjournment application. Instead, the court determined that a single award of costs was appropriate, with the first and sixth defendants, who led the adjournment application, bearing the majority of the costs.

In its final order, the court awarded costs of $7,050.50 to be distributed among the defendants, with the first and sixth defendants bearing 50% of the costs and the remaining defendants each bearing 16.66%. Additionally, the first and sixth defendants were to be reimbursed for their filing fee of $500 by the plaintiffs. This decision reflects the court's balanced approach to costs, emphasizing the importance of achieving an outcome that aligns with the interests of justice.

Orders