PMT 2010 Limited (In liq) v Mark - [2023] NZHC 3320

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2018-406-010

[2023] NZHC 3320

BETWEEN IAIN ANDREW NELLIES as liquidator of PMT 2010 Ltd (in liq)
Plaintiff

AND

PETER MARK and

JEANETTE PATRICIA MARK

Defendants

CIV-2021-406-013

BETWEEN

PMT 2010 LIMITED (In liq)
First Plaintiff

IAIN ANDREW NELLIES as liquidator of PMT 2010 Ltd (in liq)

Second Plaintiff

AND

PETER MARK and

JEANETTE PATRICIA MARK
First Defendants

WISHEART MACNAB & PARTNERS TRUSTEE COMPANY LIMITED and

DAVID JOHN PAUL as trustees of the Mark Family Trust

Second Defendants

Hearing: On the papers

Appearances:

D P MacKenzie for Plaintiffs in both proceedings P Morten for Defendants in CIV-2018-406-010 and First Defendants in CIV-2021-406-013

Judgment:

22 November 2023

NELLIES v MARK [2023] NZHC 3320 [22 November 2023]

JUDGMENT OF ASSOCIATE JUDGE SKELTON [COSTS]

[1] On 22 August 2023, the first defendants applied for a further order for particular discovery and an “unless order” against the first and second plaintiffs, on the grounds that the first and second plaintiffs had failed to comply with their obligations under a discovery order made on 23 March 2023.

[2] At the case management conference on 17 October 2023, after hearing from counsel for the parties, I made a further order for particular discovery in terms of paragraph 3 of the first defendants’ application dated 22 August 2023. I also ordered that the parties were to endeavour to agree costs on the application. Unfortunately, costs have not been agreed and the parties have filed memoranda.

[3] The first defendants say that they were successful and seek costs on a 2B basis in the total sum of $4,541 and a filing fee disbursement of $500, making a total of
$5,041.

[4] The first and second plaintiffs oppose costs on the basis that the first defendants were not required to make the interlocutory application, and the first and second plaintiffs did not oppose the application and informally discovered documents sought by the first defendants in advance of the conference on 17 October 2023.

Legal principles

[5] The principles governing the award of costs are well established.1 Questions of costs are ultimately a matter of discretion, the overall objective being to achieve an outcome that best meets the interest of justice. However, the discretion is not unfettered; it is qualified by the applicable rules, rr 14.2–14.10 of the High Court Rules 2016, and must be consistent with established principles.

1 High Court Rules 2016, r 14.1; Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28]; and Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

[6] The general principles in relation to determination of costs include that the party who fails should pay costs to the party who succeeds (costs follow the event), and costs should be assessed by applying…

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.

Keep reading for free

Create a free CaseChat account to read PMT 2010 Limited (In liq) v Mark and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 3320
Decision Date: 22 November 2023

CaseChat Overview and Summary

The case involves a dispute between the liquidators of PMT 2010 Limited (in liquidation) and Peter Mark and Jeanette Patricia Mark. The liquidators, represented by Iain Andrew Nellies, are seeking recovery of assets on behalf of the company's creditors, while the Marks are defending against these claims. The proceedings include an application for further discovery and an "unless order" against the plaintiffs for alleged non-compliance with a previous discovery order. The case was heard on the papers, with legal arguments presented through memoranda and oral submissions.

The primary legal issue before the court was whether the first and second defendants, represented by counsel, were entitled to costs following their successful interlocutory application for further discovery. The first and second plaintiffs argued that the application was not necessary and should not attract costs. They contended that they had informally provided the requested documents prior to the case management conference and had not opposed the application. The first and second defendants, on the other hand, argued that the plaintiffs had failed to comply with the initial discovery order and that the subsequent informal discovery was insufficient.

The court considered the principles governing the award of costs, noting that while the discretion to award costs is broad, it must be exercised in a manner consistent with established legal principles and the applicable rules. The court acknowledged that the first and second defendants were successful in their application for further discovery but found that the plaintiffs had not formally opposed the application, and the issue was resolved before the case management conference. The court also noted that the conference primarily addressed other issues between the parties. Consequently, the court determined that the first and second defendants were entitled to some costs but not the full amount claimed.

The court ordered that the first and second defendants were to receive 50 per cent of the costs claimed on a 2B basis, amounting to $2,270.50, along with a disbursement of $500 for the filing fee. This decision reflects a balanced approach, recognising the success of the first and second defendants while also considering the circumstances surrounding the application and the overall proceedings.

Orders