Monnery v Parsons

[2022] NZHC 2793

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-482

[2022] NZHC 2793

BETWEEN

PAUL MARK MONNERY

First Plaintiff

PAUL MARK MONNERY and JULIE ANN MONNERY

Second Plaintiffs

AND

ANDREW GRAHAM PARSONS

First Defendant

JOHN MURREY CREIGHTON
Second Defendant

continued …

Hearing:

14 September 2022 (by AVL)

Costs submissions 27 September 2022

Appearances:

C R Carruthers KC and R L Fletcher for the Plaintiffs

P R W Chisnall and J D Haig for the 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:

27 October 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

MONNERY v PARSONS [2022] NZHC 2793 [27 October 2022]

AND              BRUCE GORDON COPELAND

Third Defendant

AND              KURT BREDENBECK

Fourth Defendant

AND              MURRAY CHARLES PARSONS

Fifth Defendant

AND              PUSH DEVELOPMENTS LIMITED

Sixth Defendant

AND              SANDFIELD ASSOCIATES LIMITED

Seventh Defendant

AND              SANDFIELD VENTURES LIMITED

Eighth Defendant

AND              P K B INVESTMENTS LIMITED

Ninth Defendant

[1]    In my judgment released on 19 September 2022,1 I declined the Monnerys’ application to recall a judgment of Associate Judge Johnston which declined their application for discovery. I also declined the Monnerys’ application for leave to appeal that decision and a further application seeking leave to appeal the costs decision arising from Associate Judge Johnston’s dismissal of the discovery application.

[2]    I reserved costs in my 19 September 2022 judgment. Defendants’ counsel said they wished to be heard on the issue of increased costs. Memoranda have now been filed which I have considered.

[3]    I do not accept this is a case for increased costs as sought by each of the defendants. All defendants seek increased costs on the grounds the applications for recall/leave to appeal represented the Monnerys’ pursuing an unnecessary step or an argument that lacked merit.2 The related ground, that the Monnerys failed without

1      Monnery v Parsons [2022] NZHC 2401.

2      High Court Rules 2016, r 14.6(3)(b)(ii).

reasonable justification to accept legal arguments against their applications,3 is also relied on by some of the defendants.

[4]    In short, it is said the Monnerys’ application for recall and leave to appeal was unmeritorious.

[5]I consider an uplift is not justified for the reason contained in the judgment of

19 September 2022 at [24] where I  said  on  my  initial  reading  of  Associate  Judge Johnston’s judgment, I believed the Judge had, on an incorrect basis, concluded the documents sought by the Monnerys were irrelevant.  While my misreading of  the judgment was addressed by Mr Chisnall, counsel for the first and sixth defendants, with reference to the submissions that were before Associate Judge Johnston, the fact is the way the judgment was framed initially led me to believe the Judge may have erred.

[6]    It might be said that Mr Carruthers KC, counsel for the Monnerys, would not have been under such a misapprehension because he heard Mr Chisnall’s submissions before Associate Judge Johnston but, at the end of the day, given I acknowledged Associate Judge Johnston’s judgment could be read in a manner that suggested he had erred, I do not consider I can now find the application for recall/appeal of that judgment to be so unmeritorious as to warrant an increase in costs.

[7]    Nor do I consider an uplift in costs in respect of the application for leave to appeal against costs is called for. While I accept the merits of that appeal were doubtful, I did identify an arguable issue in respect of the Associate Judge awarding costs against the Monnerys in relation to the hearing time in the afternoon when that time concerned applications brought by the defendants rather than the Monnerys’ application.    However,  given  the  modest  sum  involved  in  that  arguable  error,  I concluded it did not warrant leave to appeal.

[8]    Accordingly, I am not convinced that departing from the normal approach of awarding costs on a 2B basis in favour of each of the defendants is appropriate.

3      High Court Rules 2016, r 14.6(3)(b)(iii).

[9]    Mr Carruthers then submits that costs on a 2B basis in respect of a hearing that took place for less than one day would amount to $30,114 if a full 2B allowance was allowed for the four counsel (leaving to one side junior counsel) who appeared for the different groups of defendants.

[10]   Mr Carruthers says it was unnecessary for each of the four defendant groups to incur the costs of presenting similar arguments. It was open to the defendants to adopt the arguments of others. This brings into  play r 14.15 of the  High Court  Rules 2016 (the Rules) which provides:

14.15Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)several defendants defended a proceeding separately; and

(b)it appears to the court that all or some of them could have joined in their defence.

[11]   I note the submissions for the first and sixth defendants adopted the submissions of the third, seventh and eighth defendants for the application for leave to appeal and/or stay of execution. Mr Nolan, counsel for the second defendant, in his written submission, adopted parts of the Sandfield parties’ submissions. Counsel for the defendants sought to avoid duplication to some extent but, further reductions in the overlap of submissions was possible.

[12]   A similar submission was made to Associate Judge Johnston when he fixed costs in respect of the discovery application he dismissed.

[13]   Having declined leave to appeal Associate Judge Johnston’s judgment in respect of costs, it is hard for me to now adopt a fundamentally different approach to costs from that adopted by Associate Judge Johnston. That is not to say the Judge’s approach is binding on me but, the reasons why I considered the Judge’s approach on costs was not in error, apply equally to the present situation. The reality is there is no material difference between the circumstances that led Associate Judge Johnston to award costs in favour of the four groups of defendants on a 2B basis and the applications I determined.

[14]   I note Associate Judge Johnston reflected the points raised by Mr Carruthers by reducing the costs award by 20 per cent. I adopt the same approach but, given greater efficiencies in the submissions on the leave/recall applications could have been achieved, the reduction is increased to 30 per cent.

[15]   Accordingly, there is a costs award in favour of each of the four groups of defendants on a 2B basis, less 30 per cent, together with disbursements on a 2B basis.

[16]   I make no costs award in respect of the fixing of costs – those costs are to lie where they fell.

Associate Judge Lester

Solicitors:

Woods Fletcher Associates, Wellington (for the Plaintiffs)

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

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

Copy to counsel:

PRW Chisnall and J D Haig, Barristers, Wellington (for First and Sixth Defendants)