Roskill Nominees Limited v Cunningham - [2022] NZHC 539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1072

[2022] NZHC 539

BETWEEN
ROSKILL NOMINEES LIMITED

Plaintiff

AND

BRUCE STEWART CUNNINGHAM

Defendant

Hearing: On the papers

Appearances:

G Bogiatto for the Plaintiff PM Hoskins for the Defendant

Judgment:

22 March 2022

JUDGMENT OF FITZGERALD J

[As to costs of withdrawn application for leave to file summary judgment application]

This judgment was delivered by me on 22 March 2022 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Corban Revell, Auckland To: G Bogiatto, Auckland
P Hoskins, Auckland

ROSKILL NOMINEES LTD v CUNNINGHAM [2022] NZHC 539 [22 March 2022]

Introduction

[1] Mr Cunningham seeks costs on his application for leave to file a summary judgment application, which was filed by him on 29 June 2021 but later withdrawn on 9 August 2021 (the Application).

[2] Moore J thereafter made directions for the filing of costs memoranda in relation to the Application, there then being a significant delay in Roskill Nominees Limited (RNL) filing its costs memorandum (which was not filed until 8 February 2022).1

[3] I make a preliminary point before proceeding any further. The Application filed by Mr Cunningham arises in this proceeding, CIV-2019-404-1072. There are also related proceedings in which Mr Cunningham is the plaintiff, RNL is the second defendant and Mr Johnson (the shareholder/director of RNL) is the first defendant (proceeding CIV-2019-404-2553). As Robinson J noted in his minute of 1 February 2022, these two proceedings are being case managed together, but they are no consolidated.

[4] Mr Cunningham’s memorandum seeking costs is filed in this proceeding, but in the intituling, lists Mr Johnson as “second respondent”. That is inappropriate. Mr Johnson is not a party to this proceeding. It is not possible for a party to an existing proceeding to change or add parties to that proceeding simply by adding names to the intituling. Rule 4.56 requires a Court order in order for parties to a pre-existing proceeding to be changed or added. Counsel should take care going forward, to ensure that the appropriate parties are listed as parties on any applications or memoranda in these proceedings.

Factual background

[5] The factual background to the current application for costs can be briefly stated.

1 Pursuant to a minute of Robinson J dated 1 February 2022, which provided a further extension of time for RNL to file its costs memorandum.

[6] RNL’s original statement of claim was filed in June 2019. On its face, while the pleading was brief, it was sufficient in my view to plead a cause of action in contract, for alleged breach of an agreement entered into in 2010. The amounts sought by way of damages were also particularised.

[7] No doubt considering the pleading sufficiently clear and particularised to enable a statement of defence to be filed, Mr Cunningham duly filed a statement of defence on 8 August 2019.

[8]RNL served a reply dated 22 August 2019.

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 Roskill Nominees Limited v Cunningham

Details

AGLC: Roskill Nominees Limited v Cunningham [2022] NZHC 539
Case: [2022] NZHC 539
Decision Date: 22 March 2022

CaseChat Overview and Summary

In the case of Roskill Nominees Limited v Cunningham, the plaintiff, Roskill Nominees Limited, sued the defendant, Bruce Stewart Cunningham, for alleged breach of contract and other related claims. The defendant had previously filed an application for leave to file a summary judgment application, which he later withdrew. The defendant sought costs for this withdrawn application. The primary issue before the court was whether the defendant was entitled to costs for his withdrawn application for leave to file a summary judgment application.

The court found that the application was made two years after the original statement of claim was filed, and there was no clear explanation for the delay. Although there is no general rule on costs in such applications, the court considered the fact that the defendant was granted an indulgence. The court also noted that the original statement of claim sufficiently disclosed a cause of action in breach of contract, and the defendant was able to plead in response by filing his statement of defence. The court held that it would not award costs to the defendant for the withdrawn application, and the costs should lie where they fall.

The court further noted that even if it had awarded costs to the defendant, it would not have awarded costs in the amount sought, as the costs should have been limited to those arising on the application itself, rather than broader costs incurred in the proceedings. The court dismissed the defendant's application for costs on his withdrawn application for leave to file an application for summary judgment, and the costs on that application were to lie where they fall.

Orders