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…

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 [2022] NZHC 2793
Case: [2022] NZHC 2793
Decision Date: 27 October 2022

CaseChat Overview and Summary

In the case of Monnery v Parsons, the plaintiffs, Paul Mark Monnery and Julie Ann Monnery, brought an application to recall a judgment that declined their application for discovery and an appeal against the costs awarded in that judgment. The defendants, including Andrew Graham Parsons, John Murrey Creighton, and others, sought increased costs on the basis that the plaintiffs' applications for recall and leave to appeal were without merit. The court was required to determine whether the defendants were entitled to increased costs under the High Court Rules 2016.

The court found that the plaintiffs' applications for recall and leave to appeal were not entirely without merit. Although the plaintiffs' initial understanding of the judgment was incorrect, this did not render the applications entirely unmeritorious. Additionally, the court identified an arguable issue in relation to the costs awarded by the Associate Judge, but concluded that the modest sum involved did not warrant leave to appeal. As such, the court was not convinced that an uplift in costs was justified. The court also noted that the defendants could have adopted the arguments of others to avoid duplication, and that the costs awarded by the Associate Judge were reduced by 20% in recognition of this issue. The court adopted a similar approach, reducing the costs award by 30% in light of the greater efficiencies that could have been achieved in the submissions on the leave/recall applications.

The court awarded costs 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. The court made no costs award in respect of the fixing of costs, which were to lie where they fell.

This case highlights the importance of carefully considering the merits of applications for recall and leave to appeal, and the potential for increased costs where such applications are without merit. It also emphasises the need for defendants to avoid duplication in their submissions, and for the court to consider the potential for efficiencies in reducing costs awards.

Orders