O'Brien v Parkinson - [2021] NZHC 2130

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 Plaintiff

AND

KEVIN PARKINSON

First Defendant

KEVIN PARKINSON, as trustee of KEVIN PARKINSON FAMILY TRUST
Second Defendant

ANNA VALEREINA KEDRINSKAIA and LISTON TRUSTEE SERVICES LIMITED,
as trustees of ANNA KEDRINSKAIA TRUST

Third 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 TRUST
Sixth 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

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 O'Brien v Parkinson

Details

AGLC: O'Brien v Parkinson [2021] NZHC 2130
Case: [2021] NZHC 2130
Decision Date: 17 August 2021

CaseChat Overview and Summary

In this case, Louisa Jane O'Brien, on behalf of General Dynamics Corporation Limited, brought claims against Kevin Parkinson and others under the Companies Act 1993 and the Property (Relationships) Act 1976. The disputes involved complex issues related to corporate governance, property rights, and family trust matters. The High Court of New Zealand, Auckland Registry, was tasked with deciding the legal issues and awarding costs.

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