Quinn v Toon - [2023] NZHC 1563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-697

[2023] NZHC 1563

BETWEEN
CLIVE ANTHONY QUINN

and
PHILIP SAMPSON WELLS
Applicants

AND

VICTORIA TOON

First Respondent

BRUCE JAMES THOMPSON
Second Respondent

CAROLINE MARY THOMPSON
and

STEWARTCO TRUSTEE SERVICES LIMITED

Third Respondents

PAMELA ISABEL QUINN

Fourth Respondent

On the papers: 22 June 2023

Appearances:

Stephen P Bryers for the Applicants

Greg Blanchard KC/Brett Martelli for the First Respondent Michael Heard/Daniel Nilsson for the Second and Third

Respondents

Judgment:

22 June 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 22 June 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

QUINN v TOON [2023] NZHC 1563 [22 June 2023]

Background

[1] On 30 April 2020, the High Court issued a judgment in respect of this proceeding1 pursuant to which the first respondent was ordered to pay the applicants’ costs and disbursements of $90,258.37. The first respondent successfully appealed the High Court’s judgment,2 and the Court of Appeal held that the costs order in the High Court was to be set aside and the first respondent was entitled to costs in the High Court on a 2B basis. Subsequently, the Supreme Court has declined to grant the applicants’ leave to appeal.3

[2] As a result of the various judgments, the first respondent is now entitled to costs and disbursements in the High Court in respect of the application.

[3]The following memoranda have been submitted:

(a)the memorandum of the first respondent dated 21 June 2022;

(b)the memorandum of the applicants dated 23 June 2022;

(c)the further memorandum of the first respondent dated 28 June 2022;

(d)the memorandum of the second and third respondents dated 5 December 2022;

(e)the further memorandum of the applicants dated 8 December 2022; and

(f)the further memorandum of the first respondents dated 22 December 2022.

1      Quinn v Toon [2020] NZHC 816.
2      Toon v Quinn [2021] NZCA 696.
3      Quinn v Toon [2022] NZSC 53.

Costs sought by the first respondent

[4] The first respondent, in the memorandum of 21 June 2022, claims costs on a 2B basis of $43,134.50 and disbursements of $24,812.73, totalling $67,947.23.

[5] The applicants, in their memorandum of 23 June 2022, take issue with two aspects of the costs sought by the first respondent:

(a)As a result the Court of Appeal’s decision in New Zealand Venue and Event Management Ltd v Worldwide NZ LLC,4 where a successful party is GST registered and is therefore entitled to a GST input credit, that party is not able to recover GST. Accordingly, the first respondent submits that the GST on Mr Parson’s fees included in the disbursements sought by the first respondent of $24,202.73 be reduced by $3,156.88, as a result of removal of GST, to an amount of $21,045.85.

(b)The first respondent’s right to recover legal expenses incurred is a statutory right pursuant to s 278 of 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.

Continue reading Quinn v Toon

Details

AGLC: Quinn v Toon [2023] NZHC 1563
Case: [2023] NZHC 1563
Decision Date: 22 June 2023

CaseChat Overview and Summary

In Quinn v Toon, the applicants, Clive Anthony Quinn and Philip Sampson Wells, sought to challenge the costs order made against them by the High Court. The first respondent, Victoria Toon, who was the liquidator of a company in liquidation, sought to recover costs from the applicants as the unsuccessful litigants. The applicants argued that the liquidator should only be able to recover costs to the extent that recovery from the company in liquidation was not possible. The court was required to decide whether the liquidator's right to recover costs as the successful litigant was a separate matter from the statutory right to recover out-of-pocket expenses from the company in liquidation.
The court held that the liquidator's right to recover costs as the successful litigant was a separate matter from the statutory right to recover out-of-pocket expenses from the company in liquidation. The court rejected the applicants' argument that the liquidator should only be able to recover costs to the extent that recovery from the company in liquidation was not possible. The court held that if the liquidator's right to recover costs as the successful litigant was not a separate matter, then the shareholders of the company in liquidation would be effectively funding part of the costs due to be repaid by the applicants as the unsuccessful litigants. This was not a fair or just outcome.
The court ordered that the applicants were to pay the first respondent 2B scale costs of $43,134.50 and disbursements of $21,655.85, totalling $64,790.35. The court reduced the disbursements claimed by the first respondent to reflect the removal of GST on Mr Parson's fees.

Orders