Monnery v Parsons

[2022] NZHC 167

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 167

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

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

PKB INVESTMENTS LIMITED

Ninth Defendant

Hearing:

On the papers

Appearances:

C R Carruthers QC and R L Fletcher for plaintiffs

P R W Chisnall and J D Haig for first and sixth defendants No appearance by or for second defendant

J P Nolen for second defendant

MONNERY v PARSONS [2022] NZHC 167 [11 February 2022]

D J Chisholm QC and J D Ryan for third, seventh and eighth

defendants
G Bogiatto for fourth, fifth and ninth defendants

Judgment:

11 February 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]    This is a costs judgment that follows an unsuccessful application by the plaintiffs  for  additional  discovery  against  certain  defendants.  In  my  judgment 26 October 2021 I reserved costs.1 I expected that counsel would be able to resolve them. That has not happened. I now have memoranda from the first and sixth; the second; the third, seventh and eighth; and the fourth, fifth and ninth defendants, all seeking costs awards. For the plaintiffs, Mr Carruthers has replied by memorandum. Counsel for the first and sixth, second and fourth, fifth and ninth defendants have replied to the reply.

[2]    Much is agreed. All parties appear to accept that the plaintiffs must be regarded as having been the unsuccessful parties in the interlocutory proceeding. Everyone appears to accept that the plaintiffs are prima facie liable for costs in relation to the same. It would appear to be agreed that if there is to be a costs award costs should be calculated on a 2B basis. The calculations carried out by the various defendant groups seeking costs awards are not challenged.

[3]    What Mr Carruthers submits is that in the circumstances the costs are unreasonably high, though of course his argument is more nuanced than that.

[4]    As he says, on its face, it is surprising that an interlocutory hearing which occupied less than a day has resulted in applications for costs orders of close to

$40,000. However, to a very large extent, that simply reflects the fact that there are a number of defendant groups involved.

1      Monnery v Parsons [2021] NZHC 2854.

[5]    Mr Carruthers goes on to submit that “the costs claimed simply do not reflect the issues which each of the defendants had to deal with”.

[6]    He reminds the Court of the observation made in the judgment that by the time the matter was heard the only applications that remained on foot were those against the first and sixth; second; and fifth defendants. Whilst that is quite correct, it does not appear to me that any of the defendants’ applications seek costs in respect of any steps in which they were not engaged.

[7]    Mr Carruthers then addresses the cases against the individual defendant groups.

[8]    His submissions focus on the fact that some aspects of the plaintiffs’ original applications were resolved or had fallen away by the time the hearing occurred so that little time was or needed to be devoted to those at the hearing. On that basis he questioned whether the defendants groups should proceed on the basis that the hearing occupied three quarters of a day (as it did). In my assessment, that would not be a sound basis for disallowing or reducing the costs claim by the defendants. The hearing occupied three quarters of a day. Counsel needed to be there.

[9]    Over and above that general argument, Mr Carruthers made a series of points relating to the aspects of the applications that proceeded.

[10]   In relation to the first and sixth defendants, Mr Carruthers reminded the Court that the first and sixth defendants had applied for further discovery against the plaintiffs and that the plaintiffs had consented to the orders sought in that regard, that these defendants also applied for orders concerning an expert but at their request that aspect of their application was adjourned and that they were parties to an application for a (further)  order  for  security  for  costs  which  was  also  adjourned.  Finally, Mr Carruthers reminded the Court that prior to the hearing the plaintiffs had notified the first and sixth defendants that they did not require them to answer interrogatories that had been served earlier. He contended that, having regard to these considerations, the first and second defendants would have required little preparation for the hearing.

[11]   So far as the second defendant is concerned, Mr Carruthers made the point that the second defendant had not responded to notices requiring him to answer interrogatories and that the plaintiffs had notified him that they did not require him to do so prior to the hearing. Again, the point being made was that this would have reduced the preparation involved prior to the hearing.

[12]   With respect to the third, seventh and eighth defendants Mr Carruthers submitted that by the time the matter came to the hearing there were no extant issues between the parties and no argument. Furthermore he said that the position in relation to the two notices to answer interrogatories was again as in the case of the first and sixth defendants that the third, seventh and eighth defendants answered the first notice but did not answer the second but that the application for an order that they do so was not pursued.

[13]   In relation to the fourth, fifth and ninth defendants, Mr Carruthers emphasised that the only application pursued was against the fifth defendant. He explained that the plaintiffs had not required the fifth defendant to answer either of the notices to answer interrogatories so that the application was not pursued.

[14]   In relation to the general point raised at the outset which applies to all applications, it seems to me that while Mr Carruthers may well be correct that taken individually the aspects of the hearing which involved any one of these defendants or groups who now apply for costs occupied only a fraction of the hearing. But I am not persuaded that that is a proper foundation for reducing the costs awards to the defendants. The simple fact of the matter is that the hearing occupied three quarters of a day and counsel for all parties needed to be present throughout. In my view, it would be wrong for the Court to start trying minutely to analyse how much time was occupied in the argument for any one of these parties or groups. The plaintiffs have elected to sue all defendants and must accept that they have an entitlement to be present at hearings where they have some involvement.

[15]   However, I can see some force in the arguments Mr Carruthers advances in relation to the degree of preparation required by the parties when significant aspects of the applications fell away prior to — albeit immediately prior to — the hearing.

[16]   In my assessment, substantial justice as between the parties will be done if the Court orders the plaintiffs to pay costs to each of the defendant groups in the amounts sought but reduced by 20 per cent in each case to reflect the considerations referred to herein.

Associate Judge Johnston

Solicitors:
Woods Fletcher Associates, Wellington for plaintiffs

Macalister Mazengarb, Wellington for first and sixth defendants K3 Legal Ltd, Auckland for second defendant

Claymore Partners, Auckland for third, seventh and eighth defendants

George Bogiatto, Auckland for fourth, fifth and ninth defendants