Monnery v Parsons - [2023] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-482

[2023] NZHC 2332

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 Cont Over

Hearing: On the papers

Appearances:

C Carruthers KC for Plaintiffs

P Chisnall and J Haig for First and Sixth Defendants

D Chisholm KC and J Ryan for Second, Third, Seventh and Eighth Defendants

G Bogiatto for Fourth, Fifth and Ninth Defendants

Date of Judgment:

24 August 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[costs]

This judgment was delivered by me on 24 August at 3.30 pm.
Pursuant to Rule 11.5 of the High Court Rules.

Solicitors/Counsel:

…………………..
Registrar/Deputy Registrar

Woods Fletcher Associates, Wellington Macalister Mazengarb, Wellington
K3 Legal Ltd, Auckland
Claymore Partners, Auckland George Bogiatto, Auckland Port Nicholson Chambers
Colin Carruthers KC, Wellington

MONNERY v PARSONS [2023] NZHC 2332 [24 August 2023]

AND BRUCE GORDON COPELAND
Third Defendant

KURT BREDENBECH
Fourth Defendant

MURRAY CHARLES PARSONS
Fifth Defendant

PUSH DEVELOPMENTS LIMITED
Sixth Defendant

SANDFIELD ASSOCIATES LIMITED
Seventh Defendant

SANDFIELD VENTURES LIMITED
Eighth Defendant

P K B INVESTMENTS LIMITED
Ninth Defendant

Introduction

[1] On 19 December 2018, Associate Judge Johnston granted applications by the defendants for orders requiring the plaintiffs to give security for costs.

[2]Four separate applications for additional security were subsequently made by:

(a)the first and sixth defendants;

(b)the second defendant;

(c)the third, seventh and eight defendants; and

(d)the fourth, fifth and ninth defendants.

For ease of reference, I refer to the applicants as four groups.

[3] In addition, the first and sixth defendants sought an order for further discovery from the plaintiffs.

[4]On 26 June 2023, Associate Judge Skelton granted:

(a)the applications by the defendants for orders requiring the plaintiffs to give additional security for costs; and

(b)the application by the first and sixth defendants for further discovery from the plaintiffs.

[5] Associate Judge Skelton reserved costs, and leave was granted to the parties to file memoranda on costs if counsel were unable to agree costs. Counsel have been unable to agree.

[6] Each group of defendants now seeks a separate award of costs. The plaintiffs accept that costs should follow the event, but argue that only one set of costs should be allowed to be shared by all of the defendants, with a reduction in the amount of the costs to recognise that the global security ordered was less than the security sought.

[7] The defendants accept that there should be a discount in the costs awarded to reflect that there was some duplication in the steps taken by each group of defendants, with two qualifications:

(a)The second defendant’s position is discrete. The second defendant arranged for counsel for the third, seventh and eighth defendants to advance the second defendant’s position at the hearing of the application for security. That is reflected in the 2B costs that are sought by the second defendant. It is argued that no…

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 [2023] NZHC 2332
Case: [2023] NZHC 2332
Decision Date: 24 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Monnery v Parsons involved multiple defendants who were all seeking costs following successful applications for security and discovery. The plaintiffs argued that only one set of costs should be awarded, with a reduction to reflect the global security ordered. The defendants, however, argued for separate awards, each claiming their positions were distinct and justified separate representation. The court considered the principles under Rule 14.15 of the High Court Rules 2016 and the McGechan on Procedure, which emphasize the need to assess whether parties have common or overlapping interests, the extent of separate cases run against each defendant, and whether separate relief would have had an identical impact on the defendants. The court concluded that each group of defendants had distinct interests, justifying separate representation and separate applications for costs. However, acknowledging potential for cooperation, the court ordered a reduction in costs for two groups to account for the duplication of efforts, with further reductions for specific groups based on their unique positions.

The court detailed the reasoning behind its decision, acknowledging the distinct causes of action against each group of defendants. The court found that while it was reasonable for each group to make their own application for additional security, there was potential for cooperation, as evidenced by the collaboration between the second defendant and the third, seventh, and eighth defendants. The court also recognised the separate nature of the second defendant's position and the first and sixth defendants' prosecution of the discovery application. Despite the plaintiffs' argument that the global security ordered was less than that sought, the court did not impose a further reduction in costs. The court awarded each group of defendants a specific set of costs, reduced by varying percentages to reflect the duplication and specific circumstances of each group. The first and sixth defendants were awarded costs reduced by 20%, the second defendant by 15%, and the third, seventh, and eighth defendants, and the fourth, fifth, and ninth defendants by 30%. The court fixed costs accordingly, considering the responsibilities of sealing the order and the certification for second counsel.

Orders