Regan v Brougham - [2020] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA666/2017
[2020] NZCA 173

BETWEEN	CHRISTINE ANNA ELIZABETH REGAN AND MARK JEFFEREY TUFFIN Appellants
AND	BRYCE BROUGHAM First Respondent RACHAEL CHRISTINA DEY Second Respondent

Written Submissions:	13 and 30 September, 1 October 2019
Court:	French, Collins and Wild JJ
Counsel:	F A King and M A Thomson for Appellants J K Mahuta-Coyle for First Respondent S A McKenna for Second Respondent
Judgment: (On the papers)	20 May 2020 at 3.00 pm

JUDGMENT OF THE COURT AS TO COSTS

AThe first respondent is to pay the appellants costs and disbursements totalling $138,003.76 as summarised in [97] of this judgment.
BThe first respondent is to pay the second respondent costs of $9,787.52 as summarised in [98] of this judgment.

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TABLE OF CONTENTS

Para

Introduction

The litigation

Applicable costs principles

Application of these principles here

The opposing submissions

Appellants’ claim
Mr Brougham’s answer
Appellants’ reply

Offer to settle

Our decisions

Initial guarantee enforcement costs, 29 October 2010 to 14 February 2012: $14,370.01 (para 13.1 of appellants’ 13 September 2019 submissions)
Disbursement of Stephen Lace, Chartered Accountant: $1,213.25 (para 13.1.1)
Porirua District Court costs: $4,622.70 (para 13.2)
Whanganui District Court costs: $78,146.18, being 70% of $111,637.40 (part of para 13.3)
Costs of appeal to High Court: $30,966.42 being 70% of $44,237.84 (part of para 13.3)
Costs of Mr Brougham’s cross-appeal to the High Court: $14,818.00 (para 13.3.3)
Applications for leave to appeal: $28,742.85 (part of para 13.4)

High Court: $13,730.85
Court of Appeal: $15,012

Substantive appeal to Court of Appeal: $41,078.90 (part of para 13.4)
Post judgment costs

Result

REASONS OF THE COURT

(Given by Wild J)

Introduction

This judgment deals with applications for costs by the appellants, who are the trustees of the Winchester Trust, and by the second respondent. The application follows the appellants’ successful appeal to this Court.[1]
[1]Regan v Brougham [2019] NZCA 401.
The judgment ordered the first respondent (we will refer to him as Mr Brougham) to indemnify the appellants for their reasonable costs in this Court, and reserved costs in the District Court and High Court, directing the filing of memoranda. The parties duly filed memoranda. We summarise their opposing positions in [19] to [33] below. Briefly, the appellants seek costs against Mr Brougham, in all three Courts, totalling $249,706.93. Of these $184,517.67 are indemnity costs relating to their claim against Mr Brougham and $33,918 are their scale costs, in the District Court and High Court, of successfully defending Mr Brougham’s counterclaim. The remaining $31,271.26 are costs they incurred before commencing the proceeding in the District Court, together with their costs for work done following this Court’s judgment. The post-judgment work was largely in relation to the present application. The appellants also seek those costs on an indemnity basis. The second respondent applies for an order that Mr Brougham pay her costs of $9,787.52.

The litigation

Mr Brougham guaranteed a loan of $50,000 made by the appellants to a company of…

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 Regan v Brougham

Details

AGLC: Regan v Brougham [2020] NZCA 173
Case: [2020] NZCA 173
Decision Date: 20 May 2020 at 3.00 pm

CaseChat Overview and Summary

This case concerns a litigation for costs between Christine Regan and Mark Tuffin as appellants and Bryce Brougham as first respondent. Rachael Dey was the second respondent. The appellants were trustees of the Winchester Trust. The Court of Appeal was required to decide the applications for costs by the appellants and the second respondent. The Court considered the applicable costs principles and the application of these principles to the case. The Court found that the appellants were entitled to indemnity costs relating to their claim against the first respondent. The Court also found that the appellants were entitled to their scale costs of successfully defending the first respondent's counterclaim. The Court disallowed some of the costs claimed by the appellants as they were not reasonably necessary or the amount claimed was excessive. The Court awarded costs to the appellants and the second respondent against the first respondent. The first respondent was ordered to pay the appellants costs and disbursements totaling $107,192.76 and the second respondent costs of $9,787.52.

Orders