Shoye Venture Limited v Wilson - [2014] NZHC 1636

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-007912 [2014] NZHC 1636

BETWEEN
SHOYE VENTURE LIMITED

Plaintiff

AND

DONALD GORDON WILSON Defendant

AND

MANUKAU GOLF CLUB INCORPORATED

Third Party

Continued over

Hearing: On the Papers

Counsel:

M R T Colthart for the Plaintiff in Proceeding CIV-2009-404-
007912 and for the Defendant in Proceeding CIV-2010-404-
004422
A E Hansen for the Defendant in Proceeding CIV-2009-404-
007912 and for the Plaintiff in Proceeding CIV-2010-404-
004422
I T F Hikaka and K L J Simcock for the Third Party in
Proceeding CIV-2009-404-007912

Judgment:

11 July 2014

JUDGMENT OF DUFFY J [Re Costs]

This judgment was delivered by Justice Duffy on 11 July 2014 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

SHOYE VENTURE LTD v WILSON [2014] NZHC 1636 [11 July 2014]

CIV-2010-404-004422

BETWEEN MANUKAU GOLF CLUB INCORPORATED
Plaintiff

ANDSHOYE VENTURE LIMITED Defendant

Counsel: M R T Colthart P O Box 535 Shortland Street Auckland 1140 for the Plaintiff in

Proceeding CIV-2009-404-007912 and for the Defendant in Proceeding CIV-
2010-404-004422
Solicitors: Heimsath Alexander P O Box 105884 Auckland City Auckland 1143 for the Defendant in Proceeding CIV-2009-404-007912 and for the Plaintiff in Proceeding CIV-2010-404-004422
Lee Salmon Long P O Box 2026 Shortland Street Auckland 1140 for the
Third Party in Proceeding CIV-2009-404-007912

[1] On 28 March 2013, I delivered a judgment in these consolidated proceedings (Shoye Venture Ltd v Wilson [2013] NZHC 658) in which I found that the plaintiff (“Manukau”) and the defendant (“Shoye”) were unsuccessful in their claims against each other. In that judgment, I determined that:

(a) The illegal de facto way in which the parties went about the operation of the gaming machines at the Trophy Bar was an implicit abandonment of the legal contractual arrangements as approved by the Department of Internal Affairs;

(b) Manukau was stuck with the illegal actions of its authorised agent;

and

(c) Manukau was not able to sue Shoye for breaches of the original venue agreement, and Shoye was likewise precluded in respect of its claims, it being a willing participant in what had taken place.

[2] The other claims that were made by Shoye were either similarly impugned by the illegality, or were not made out, or were for losses that were not properly claimable.

[3] Following the delivery of my judgment, Manukau seeks costs against Shoye. Manukau’s application for costs is reliant on Calderbank offers that were made to Shoye. Those offers were rejected.

[4] By letter dated 11 May 2012, Manukau proposed a “walk away solution” for the proceedings. Manukau offered to discontinue its claims in the proceedings against Shoye if Shoye would also agree to discontinue its claim against Manukau, with costs lying where they fell.

[5] Then, by letter dated 18 May 2012, Manukau offered Shoye $50,000 to resolve all issues between the parties.

[6] Manukau contends the Calderbank offers were made at a point in time where both parties knew their legal positions. The letters…

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: [2014] NZHC 1636
Decision Date: 11 July 2014

CaseChat Overview and Summary

In Shoye Venture Limited v Wilson, the High Court of New Zealand considered a dispute involving Shoye Venture Limited (the plaintiff) and Donald Gordon Wilson (the defendant), with Manukau Golf Club Incorporated (the third party) also involved. The court had to determine the costs of the proceedings, particularly whether Shoye Venture Limited should be awarded costs against Donald Gordon Wilson based on Calderbank offers that were rejected by Wilson. The legal issues centered around whether Shoye Venture Limited, having made settlement offers under the Calderbank rule, was entitled to costs despite the unsuccessful outcome of the litigation and the illegality of the underlying contract. Shoye Venture Limited argued that its Calderbank offers should entitle it to costs, given Wilson's rejection of these offers. The court, after considering the arguments and the public policy implications of encouraging settlement and efficient use of court resources, decided that Shoye Venture Limited was entitled to an award of costs. The court found that the Calderbank offers were made in good faith and would have placed Wilson in a better position than the trial outcome. However, the court also considered Shoye Venture Limited's conduct in pursuing the litigation based on the illegal contract, which was a disentitling factor. Ultimately, the court awarded Shoye Venture Limited its scale costs and disbursements, totaling $26,138 and $11,011.25, respectively.

Orders