Perrot-Hunt v Johnston - [2018] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2506

[2018] NZHC 1748

BETWEEN
MATTHEW NEIL PERROT-HUNT

First Plaintiff

HUNT FT LIMITED and DEBRA CECILIA

HOLTOM as trustees of the Hunt Family Trust

Second Plaintiffs

AND

EDWARD ERROL JOHNSTON

First Defendant

Cont….

Hearing: On the papers

Appearances:

R S Pidgeon for Plaintiffs

M Francis and I R Shennan for Fourth Defendant

Judgment:

16 July 2018

JUDGMENT OF LANG J

[re costs on adjournment of application for re-joinder]

This judgment was delivered by me on 16 July 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

PERROT-HUNT v JOHNSTON [2018] NZHC 1748 [16 July 2018]

EDWARD JOHNSTON & CO TRUSTEES
LIMITED (as former trustee of the Hunt Family Trust)
Second Defendant

RONALD BRUCE JOHNSON, JOHN KAHUKIWA and LAWRENCE PONNIAH
(sued as Corban Revell) Third Defendants

RONALD BRUCE JOHNSTON as
principal of Central Park Legal Limited (removed)
Fourth Defendant

ROSS JAMES FARRON and JAMES ROBERT ARTHUR NASH
Fifth Defendants

ROSS JAMES FARRON
Sixth Defendant

[1] On 12 June 2018 I was scheduled to hear an application by the plaintiffs for an order re-joining Mr Johnson as a fourth defendant to the proceeding. He had earlier been struck out as a defendant by Associate Judge Bell on 11 April 2017.1

[2] After reading the file on 7 June 2018 I became concerned regarding the state of the pleadings in the then current version of the statement of claim. For that reason, I issued a Minute directing a telephone conference to be held with counsel on Friday 8 June 2018. Counsel for the plaintiffs was unable to attend that conference for medical reasons, and it was therefore necessary to direct a face to face conference on Monday 11 June 2018. During this conference, I pointed out the flaws I considered the statement of claim to contain.

[3] On the morning of 12 June 2018 counsel for the plaintiffs produced a new version of the statement of claim. This excluded causes of action on which the re- joinder application had previously been based and added a new cause of action that had never been pleaded before. The new cause of action raised potential limitation issues. To deal with this the plaintiffs also filed an application for an order under s 45 of the Limitation Act 2010 extending the period of limitation in relation to the new cause of action.

[4] Faced with these developments, it was not possible for the hearing to proceed. I therefore made timetable orders for the fourth defendant to file documents responding to the application and the new statement of claim. I then directed that the application for re-joinder based on the amended statement of claim was to be heard before Associate Judge Bell on 24 September 2018.

[5] The proposed fourth defendant now seeks an award of costs to reflect the wasted costs incurred in relation to the hearing on 12 June 2018 and…

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 Perrot-Hunt v Johnston

Details

AGLC: Perrot-Hunt v Johnston [2018] NZHC 1748
Case: [2018] NZHC 1748
Decision Date: 16 July 2018

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application for an order re-joining Ronald Bruce Johnson as a fourth defendant in the case of Perrot-Hunt v Johnston. Johnson had previously been struck out as a defendant by Associate Judge Bell on 11 April 2017. The plaintiffs, Matthew Neil Perrot-Hunt, Hunt FT Limited, and Debra Cecilia Holtom as trustees of the Hunt Family Trust, sought to re-join Johnson as a defendant based on a new version of their statement of claim, which introduced a new cause of action that had not been pleaded before. This new cause of action raised potential limitation issues, prompting the plaintiffs to also file an application for an order under s 45 of the Limitation Act 2010 extending the period of limitation in relation to the new cause of action.

The court was required to decide whether the proposed fourth defendant should receive an award of costs for the wasted costs incurred in relation to the hearing on 12 June 2018 and the steps taken prior to that hearing. The court was also required to determine whether the proposed fourth defendant should receive increased costs on the basis that the plaintiffs took or pursued an unnecessary step that lacked merit. Furthermore, the court needed to consider whether the plaintiffs failed to respond to correspondence pointing out the difficulties in the current version of the statement of claim and inviting the plaintiffs to reconsider their position.

The court held that the proposed fourth defendant should receive an award of costs as he was the successful party in relation to the application in its original form. The court also held that the proposed fourth defendant should receive increased costs as the plaintiffs took an unnecessary step or pursued an argument that was without merit in terms of r 14.6(3)(b)(ii) of the High Court Rules 2016. The court further held that the plaintiffs who are not legally aided are to pay the costs ordered in this judgment no later than 17 August 2018. Should that not occur, the proposed fourth defendant may apply by memorandum for an order staying the application for re-joinder until the costs have been paid.

Orders