Sandfield Associates Limited v Monnery - [2021] NZHC 2908

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-505

[2021] NZHC 2908

IN THE MATTER OF the liquidation of Convendium Limited

BETWEEN

SANDFIELD ASSOCIATES LIMITED
First Plaintiff

CONVENDIUM LIMITED (in liquidation) Second Plaintiff

AND

PAUL MARK MONNERY, JULIE ANN MONNERY and DAVID GRIFFITHS

Defendants

Cont/…

Hearing: On the papers

Counsel:

CR Carruthers QC for Applicants/Defendants/ Judgment Debtors (Monnerys)

DJ Chisholm QC and JD Ryan for Respondents/Plaintiffs/ Judgment Creditor (Convendium)

Judgment:

29 October 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 29 October 2021 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Oakley Moran, Wellington Claymore Partners, Auckland

CR Carruthers QC, Auckland DJ Chisholm QC, Auckland

SANDFIELD ASSOCIATES LTD v MONNERY [2021] NZHC 2908 [29 October 2021]

CIV-2019-404-1906

IN THE MATTER OF the bankruptcy of JULIE ANN
MONNERY

BETWEEN CONVENDIUM LIMITED (in
liquidation) Judgment Creditor

AND JULIE ANN MONNERY
Judgment Debtor
CIV-2019-404-1907

IN THE MATTER OF the bankruptcy of PAUL MARK
MONNERY

BETWEEN CONVENDIUM LIMITED (in
liquidation) Judgment Creditor

AND PAUL MARK MONNERY
Judgment Debtor

Introduction

[1] Applications were made by Mr Paul and Mrs Julie Monnery in two proceedings:

(a)for a stay of execution of a summary judgment entered against them in favour of Convendium Ltd (“Convendium”) pending the final determination of proceedings brought in the Wellington High Court by the Monnerys, CIV-2018-485-482; and

(b)for halts of bankruptcy proceedings brought against each of Mr and Mrs Monnery, CIV-2019-404-1906 and CIV-2019-404-1907, also pending determination of the Wellington proceedings, CIV-2018-485-482.

[2] I granted the applications and held that the Monnerys were entitled to costs having succeeded in their applications.1

[3] I asked the parties to confer but directed that memoranda could be filed if costs were unable to be agreed. The parties were unable to agree and so memoranda have now been filed.

[4] The memorandum filed on behalf of the Monnerys seeks costs on a 2B basis in the amount of $8,126 plus disbursements of $1,637 including filing fees, airfares for counsel for the hearing between Wellington and Auckland and taxi fares.

[5] The memorandum filed in response on behalf of Convendium opposes the costs sought and seeks a recall of my judgment in respect of the costs award on the basis that Convendium had not been given an opportunity to be heard on costs and the Monnerys had been granted an indulgence. In the circumstances, it is submitted that either costs ought to be awarded in favour of Convendium or no order for costs ought to be made.

1 Sandfield Associates Ltd v Monnery [2020] NZHC 1003 at [109]–[110].

Costs principles

[6] Rule 14.1 of the High Court Rules 2016 provides that costs are a matter of discretion with the overall objective being to achieve an outcome that best meets the interests of justice in the given case in accordance with any applicable costs rules and consistent with established principles.

[7] Rule 14.2(1)(a) provides that generally a party…

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: [2021] NZHC 2908
Decision Date: 29 October 2021

CaseChat Overview and Summary

Sandfield Associates Limited and Convendium Limited, a company in liquidation, brought proceedings against Paul Mark Monnery, Julie Ann Monnery, and David Griffiths. The dispute centred around a summary judgment entered against the Monnerys in favour of Convendium, and the subsequent bankruptcy proceedings brought against them. The Monnerys sought a stay of execution of the summary judgment and a halt of the bankruptcy proceedings pending the outcome of related proceedings in the Wellington High Court. The court granted these applications, allowing the Monnerys to appeal the summary judgment and halt the bankruptcy proceedings.

The legal issues before the court were whether the Monnerys were entitled to costs for their successful applications and, if so, the appropriate amount. The Monnerys argued for costs on a 2B basis, while Convendium opposed the costs sought and requested a recall of the original judgment on costs, arguing that they had not been given an opportunity to be heard on the matter. Convendium also submitted that the Monnerys had been granted an indulgence.

The court reconsidered the costs award, noting that generally, a party that fails in an application should pay costs to the successful party. However, the court acknowledged that by granting the Monnerys' applications, it had granted them an indulgence. Despite this, the court found that Convendium had risked a costs award against it by opposing the applications. The court considered the factors for and against the stay and concluded that the interests of justice were best served by allowing the costs to lie where they fall, given the significant costs awards already outstanding against the Monnerys.

The court varied the previous costs order, deciding that the costs of the successful applications brought by the Monnerys to stay the execution of the summary judgment and halt the bankruptcy proceedings were to lie where they fall. This decision effectively means that neither party will be required to pay the other's costs for these applications. The court also noted that any further orders regarding set-off would require additional submissions from the parties.

Orders