PMT 2010 Ltd (in liquidation) v Mark - [2022] NZHC 573

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2021-406-000013

[2022] NZHC 573

BETWEEN
PMT 2010 LTD (in liquidation) First Plaintiff

MURRAY GEORGE ALLOTT, as liquidator of PMT 2010 LTD (in liquidation)

Second Plaintiff

AND

PETER MARK AND JEANETTE PATRICIA MARK

First Defendant

WISHEART MACNAB & PARTNERS TRUSTEE COMPANY LIMITED AND DAVID JOHN PAUL AS TRUSTEES OF THE MARK FAMILY TRUST

Second Defendants

Hearing: On the Papers

Judgment:

25 March 2022

JUDGMENT OF GRICE J

(Costs on joinder of plaintiff amendment statement of claim)

[1]On 11 February 2022, I allowed applications by the plaintiff for:1

(a)The joinder of the liquidator as second plaintiff.

1 PMT 2010 Ltd (in liq) v Mark [2022] NZHC 169 [the substantive judgment] at [117].

PMT 2010 LTD v MARK [2022] NZHC 573 [25 March 2022]

(b)The application of the late knowledge limitation period to the first, second and third causes of action so those were not statute barred.

(c)The application of the limitation period to the amended second cause of action, which is an “ancillary claim” to either or both of the claims pleaded in the amended first and third causes of action. The long stop period had not closed and so the claim was not statute barred.

(d)Leave to file an amended statement of claim.

[2] I noted the application to join a second plaintiff had been necessary due to the omission of the liquidator as a plaintiff when the 2021 proceedings were filed. In addition, I noted an application was necessary due to the long stop limitation period expiring in relation to the second cause of action.2

[3] Counsel have been unable to agree on costs, and the defendant has applied for costs. I have considered the memoranda filed and revised my preliminary view as to costs.

Background

[4] These proceedings had entered a procedural quagmire. The applications dealt with in the judgment of 11 February 2022 were precipitated by a strike out application and an application for summary judgment made by the defendants. These were based on defences raised that the causes of action were time barred and that two causes of action could only be brought by the liquidator and not the company (in liquidation).

[5] In response to those applications the plaintiffs filed a memorandum requesting an order joining Mr Allott, the liquidator, as the second plaintiff, and filed an amended statement of claim (the ASOC) naming Mr Allott as the second plaintiff. The ASOC substituted Mr Allott as the relevant plaintiff in the pleading of the second and third causes of action. These could not succeed if the liquidator was not the plaintiff. The draft ASOC also amended the first cause from an action in conversion to a claim for

2 At [120].

unjust enrichment, which clarified the pleading but did not alter the underlying substance.

[6] The defendants’ application for summary judgment and strike out came before Ellis J for hearing on 20 September 2021. Mr Morten, for the…

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.

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Details

Case: [2022] NZHC 573
Decision Date: 25 March 2022

CaseChat Overview and Summary

The High Court of New Zealand heard an application for costs between PMT 2010 Ltd (in liquidation) and Mark. The plaintiffs sought to join the liquidator as a second plaintiff and amend their statement of claim. The defendants opposed the application. The court was required to decide whether the plaintiffs should bear the costs of the original pleading and any application for amendment, or if the defendants should bear the costs as the unsuccessful party. The court also needed to determine whether the complexity of the Limitation Act arguments warranted an uplift in costs. The court found that the plaintiffs were entitled to costs for the successful applications, but the defendants were entitled to costs for the case management conference and one quarter of the costs for the applications heard. The court awarded costs on a 2B basis, with some variations to account for the complicated procedural path leading to the applications. The costs in relation to the preparation of affidavits and related material were to be reduced by 50 per cent, as the material was prepared for the strike out and summary judgment application. The costs under r 7.77(8) in relation to the amended pleading were awarded only in relation to the application for amendment. The court took a broad view but applied established principles to determine an award of costs properly taking into account the particular circumstances.

Orders