IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-002814
[2021] NZHC 2130
UNDER The Companies Act 1993 BETWEEN
LOUISA JANE O’BRIEN, on behalf of GENERAL DYNAMICS CORPORATION LIMITED
First Plaintiff
LOUISA JANE O’BRIEN
Second PlaintiffAND
KEVIN PARKINSON
First Defendant
KEVIN PARKINSON, as trustee of KEVIN PARKINSON FAMILY TRUST
Second DefendantANNA VALEREINA KEDRINSKAIA and LISTON TRUSTEE SERVICES LIMITED,
as trustees of ANNA KEDRINSKAIA TRUSTThird Defendants
CIV-2020-404-002351 UNDER
The Property (Relationships) Act 1976
BETWEEN
KEVIN JAMES PARKINSON
Plaintiff
AND
LOUISA JANE O’BRIEN
First Defendant
GENERAL DYNAMICS LIMITED
Second Defendant
KEA GNSS LIMITED
Third Defendant
O’BRIEN v PARKINSON & ORS [2021] NZHC 2130 [17 August 2021]
KEVIN JAMES PARKINSON, as trustee of the KEVIN PARKINSON FAMILY TRUST
Fourth Defendant
LOUISA JANE O’BRIEN, as trustee of the LOUISA PARKINSON FAMILY TRUST
Fifth Defendant
ANNA VALEREINA KEDRINSKAIA and LISTON TRUSTEE SERVICES LIMITED,
as trustees of the ANNA KEDRINSKAIA TRUSTSixth Defendant
Hearing: On the papers
Final submissions filed 9 July 2021
Appearances:
J McCartney for Plaintiff (CIV-2019-404-2814) and Defendants (CIV-2020-404-2351)
S Morris and S A Finnigan for Defendants (CIV-2019-404-2814) and Plaintiffs (CIV-2020-404-2351)
Judgment:
17 August 2021
COSTS JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
This judgment was delivered by Associate Judge Andrew on 17 August 2021 at 3.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date………………………….
Introduction
[1] In my judgment of 27 May 2021, I concluded that Ms O’Brien had succeeded with all four of her applications (discovery, non-party discovery, joinder and strike- out) and was entitled to costs.1
[2] This judgment contains my decision on costs. It is being determined on the papers after receipt of submissions from the parties.
Relevant legal principles
[3] In accordance with Part 14 of the High Court Rules 2016, the party who fails with respect to a proceeding should pay costs to the party who succeeds.2 An award of costs should reflect the complexity and significance of the proceeding,3 and costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding.4
[4] An award of costs is not to exceed the actual costs incurred by the party claiming costs5 and as far as possible, the determination of costs should be predictable and expeditious (r 14.2(1)(g)).
[5] The Court of Appeal summarised the approach to standard scale costs, increased costs and indemnity costs in Bradbury v Westpac Banking Corporation:6
(a)standard scale applies by default where cause is not shown to depart from it;
(b)increased costs may be ordered where there is a failure by the paying party to act reasonably; and
(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.
[6] A Court may award increased costs if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding by taking or pursuing an unnecessary step or an argument that lacks merit.7
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- AGLC
- O'Brien v Parkinson [2021] NZHC 2130
- Case
- [2021] NZHC 2130
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether Ms. O'Brien was entitled to discovery, non-party discovery, joinder, and strike-out in her applications. Additionally, the court had to determine the appropriate costs to be awarded to Ms. O'Brien for the proceedings. The court had to assess whether the defendants' conduct warranted an award of increased costs or indemnity costs, given their failure to comply with court orders and the merit of their arguments.
Associate Judge Andrew determined that Ms. O'Brien was entitled to costs based on the defendants' failure to comply with court orders and their pursuit of arguments lacking merit. The judge agreed with Ms. O'Brien's contention that almost every factor supporting an order for increased costs was met. The judge awarded costs on a 2B scale for both the Property (Relationships) Act and Companies Act proceedings, considering the complexity of the issues and the defendants' conduct. The total costs awarded to Ms. O'Brien amounted to $36,806.00, plus disbursements of $3,345.57.
In summary, the court ordered the defendants to pay Ms. O'Brien $36,806.00 in costs and $3,345.57 in disbursements, reflecting the circumstances of the case and the defendants' conduct during the litigation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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