Ruscoe v Cattermole - [2025] NZHC 631

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-080

[2025] NZHC 631

BETWEEN DAVID IAN RUSCOE and MALCOLM RUSSELL MOORE
Applicants

AND

THOMAS VICTOR HENRY RONALD CATTERMOLE

Respondent

Hearing: On the papers

Appearances:

S A Barker and B E Marriner for Applicants R A Hearn for Respondent

Judgment:

25 March 2025

JUDGMENT OF McHERRON J

(Costs)

[1] In my judgment of 18 December 2024, I dismissed the application of David Ruscoe and Malcolm Moore (the liquidators of Cryptopia Ltd) for orders holding Thomas Cattermole in contempt of court under s 16 of the Contempt of Court Act 2019.1 For convenience I set out a summary of my findings taken from the final paragraphs of my judgment:

[117] The liquidators have established the following incidences of Mr Cattermole’s knowing failure to comply with Court orders:

(a)Mr Cattermole failed to disclose that he provided partial extracts of the Spreadsheets to Mr Serafimov and Mr Chaudhry in July and September 2020. In failing to do so, he failed to comply with the Orders of 21 October 2020.

1 Ruscoe v Cattermole [2024] NZHC 3883.

RUSCOE v CATTERMOLE [2025] NZHC 631 [25 March 2025]

(b)Mr Cattermole failed to bring the emails dated 15 July 2020 and 26 September 2020 to Court. In failing to do so, he failed to comply with the 20 November 2020 Orders.

[118] However, in each case, I do not accept that other methods of enforcement were inappropriate or were tried unsuccessfully by the liquidators. Having reached this conclusion, according to s 16(3)(a) of the Act, the Court “must not proceed further” under s 16.

[119] Relevant to “other methods of enforcement”, at the hearing I expressed the preliminary view that many of the orders at (f)–(h) of the liquidators’ application ought to be able to be made by consent. Mr Hearn appeared to indicate Mr Cattermole might be amenable to consent orders. However, I note that many of those orders are formally opposed, and they mostly duplicate orders already made. I direct the parties to discuss what further orders might be able to be made by consent and to file a joint memorandum if possible (or separate memoranda if not), no later than 31 January 2025.

[2] I reserved costs and encouraged the parties to resolve any questions of costs between themselves.2 If they were unable to do so I allowed them to file and serve memoranda of no more than two pages.

Mr Cattermole’s submissions seeking costs

[3] On behalf of Mr Cattermole, his lawyer Mr Hearn filed a brief memorandum dated 11 February 2025 seeking costs and disbursements, calculated on a 2B basis as set out in the following schedule:

Step Days Amount

38/12: Attendance at case management

teleconference
0.2 $478

39/12: Attendance at case management

teleconference
0.2 $478

38 – Filing notice of opposition 2.0 $4,780

40 – Preparation of submissions 1.5 $3,585

42 – Appearance at hearing 1.0 $2,390

Total 4.9 $11,711.00

Disbursements

Travel…

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 Ruscoe v Cattermole

Details

AGLC: Ruscoe v Cattermole [2025] NZHC 631
Case: [2025] NZHC 631
Decision Date: 25 March 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Ruscoe and Moore, as liquidators of Cryptopia Ltd, sought to hold Thomas Cattermole in contempt of court for knowingly failing to comply with court orders. The main legal issues were whether Cattermole had knowingly failed to comply with specific court orders and if other methods of enforcement were tried unsuccessfully by the liquidators. The Court found that Cattermole had indeed failed to comply with certain orders but also concluded that the liquidators had not attempted other enforcement methods unsuccessfully. Consequently, the Court dismissed the contempt application.

The Court's reasoning was grounded in the statutory requirement under s 16(3)(a) of the Contempt of Court Act 2019, which mandates that the Court must not proceed further if other enforcement methods were not tried or were unsuccessful. Despite establishing instances of Cattermole's non-compliance, the Court found that the liquidators had not demonstrated that other enforcement methods were either inappropriate or had been tried unsuccessfully. This led to the dismissal of the contempt application. The Court further directed the parties to discuss potential consent orders and file a joint or separate memorandum by a specified date.

Cattermole's legal representative sought costs, arguing that his client was the successful party in the proceeding. In response, the liquidators argued that the unique circumstances of the case, including Cattermole's contumacious behaviour and disregard for court orders, warranted a refusal of costs despite his technical success. The Court considered these submissions but ultimately determined that Cattermole was entitled to costs as the prevailing party. However, the Court decided to reduce the costs payable to Cattermole due to his failure to comply with court rules and directions, including a missed deadline for filing his notice of opposition and an unexpected absence from the country that delayed the hearing.

The Court concluded that Cattermole's non-compliance with the court's direction to discuss potential consent orders also warranted a reduction in costs. As a result, Cattermole was not awarded any costs at that stage, with the Court indicating that further consideration would be given if the orders were complied with or if additional material was filed to explain the delay.

Orders