Secure Financial Services Limited v Nguy - [2017] NZHC 682

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2015-404-001534

[2017] NZHC 682

BETWEEN SECURE FINANCIAL SERVICES LIMITED
Plaintiff

AND

JESSE SEANG TY NGUY

First Defendant

MARLI INVESTMENTS LIMITED

Second Defendant

Hearing: 6 April 2017 (teleconference)

Appearances:

S A Grant for Plaintiff P Napier for Defendant

Judgment:

10 April 2017

JUDGMENT OF VENNING J APPLICATION FOR WASTED COSTS

This judgment was delivered by me on 10 April 2017 at 11.30 a], pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Bruce Dell Law, Auckland

SECURE FINANCIAL SERVICES LIMITED v NGUY [2017] NZHC 682 [10 April 2017]

Keegan Alexander, Auckland

Copy to: S A Grant, Auckland

[1] The fixture allocated for four days to commence 20 February 2017 was vacated on the first defendant’s application.

[2] The application was made on 9 February 2017 as the plaintiff had failed to comply with the pre-trial directions set by Associate Judge Bell on 16 June 2016, notably the requirement that the plaintiff serve its statements of evidence by 18 November 2016. When the plaintiff had not served its witness statements by 9 February 2017 the first defendant applied to vacate the fixture. The plaintiff did not oppose the application for adjournment but opposed the accompanying application for costs.

[3] Heath J adjourned the trial in a minute issued on 13 February 2017 but reserved the issue of costs.

[4] Counsel for the first defendant has sought a hearing on application for costs. The second defendant has not sought to be heard. Counsel exchanged full submissions and I convened a teleconference.

[5] The starting point is that a party in default of a Court timetable which necessitates an adjournment of a fixture will generally be liable to pay the wasted costs of the other party or parties to the proceeding.1

[6] The plaintiff does not accept its actions led to the adjournment and opposes the application for costs on the following grounds:

(a)The need for the adjournment arises due to:

(i)the addition of a second defendant on 28 October 2016 due to an argument raised by the first defendant that the plaintiff has not suffered any loss;

1 Highley Ltd v Vodafone New Zealand Ltd HC Auckland CIV-2006-404-2870, 6 September 2011.

(ii)the addition of the new party required further evidence for the plaintiff;

(iii)the first defendant had failed to make full discovery;

(iv)the second defendant discovered further documents on 8 February 2017 which are “likely to have a bearing”;

(v)the evidence may be able to be dealt with by an agreed statement of facts;

(vi)the plaintiff’s expert evidence has not been finalised.

(b)The first defendant will not have wasted any costs.

(c)The plaintiff consented to the proposed adjournment and suggested a split trial. There was no need for the current application

(d)Costs can be dealt with following the substantive hearing.

[7]I deal with the points raised by the plaintiff in opposition to costs.

(a)(i) The plaintiff’s reliance on the point taken by the first defendant that the plaintiff had…

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: [2017] NZHC 682
Decision Date: 10 April 2017

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an application for wasted costs brought by the first defendant, Jesse Seang Ty Nguy, against the plaintiff, Secure Financial Services Limited, and the second defendant, Marli Investments Limited. The plaintiff had failed to comply with pre-trial directions, resulting in the vacation of a four-day fixture allocated for the case. The plaintiff did not oppose the application for adjournment but opposed the accompanying application for costs.

The central legal issue before the court was whether the plaintiff's failure to comply with the pre-trial directions justified an award of wasted costs to the first defendant. The plaintiff argued that various factors, such as the addition of a second defendant, incomplete discovery, and the plaintiff's own incomplete evidence, contributed to the need for the adjournment. The court considered these arguments but found that the plaintiff's non-compliance with the court-ordered timetable was the primary cause of the adjournment. The court noted that the plaintiff had failed to seek a variation of the directions or to prepare and serve its witness statements by the required date.

The court held that the plaintiff's failure to comply with the court's directions necessitated the adjournment and resulted in wasted costs for the first defendant. While the court acknowledged that the plaintiff had taken some steps to mitigate the effects of its non-compliance, it found that these efforts were insufficient to excuse the plaintiff's failure to adhere to the court's timetable. The court also rejected the plaintiff's argument that it had consented to the adjournment and suggested a split trial, thereby negating the need for the application for costs. The court ruled that the first defendant was entitled to wasted costs of $5,017.50 and the costs of the application, totaling $10,758.15, which were to be paid forthwith.

In conclusion, the court found in favour of the first defendant and ordered the plaintiff to pay the specified amount of wasted costs and the costs of the application. The court emphasised the importance of adhering to court-ordered timetables and the consequences of failing to do so.

Orders