Slater v Blomfield - [2019] NZCA 664

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA640/2018
[2019] NZCA 664

BETWEEN	CAMERON JOHN SLATER First Appellant SOCIAL MEDIA CONSULTANTS LIMITED (IN LIQUIDATION) Second Appellant
AND	MATTHEW JOHN BLOMFIELD Respondent

Court:	French, Miller and Stevens JJ
Counsel:	G S Caro for the Official Assignee for First Appellant F E Geiringer for Respondent
Judgment: (On the papers)	19 December 2019 at 10.30 am

JUDGMENT OF THE COURT

AThe respondent’s application for indemnity costs is declined.
BThe appellants are jointly and severally liable to pay costs and disbursements to the respondent as follows:
(a)the sum of $10,000 by way of increased costs;
(b)disbursements (if any) as approved by the Registrar; and
(c)the sum of $1,737.49 in respect of the costs and disbursements of and incidental to the briefing of medical experts.

CThe Registrar is directed to pay out the sum held by the Registry for security for costs on the basis agreed between the respondent and the Official Assignee in the joint memorandum dated 17 September 2019.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

This is an application by the respondent, Mr Blomfield, for indemnity costs and disbursements following the abandonment of an appeal by Mr Slater and Social Media Consultants Ltd (in liq).
The appeal followed judgments given by Davison J in the High Court in relation to interlocutory applications made by Mr Slater. These judgments:
(a)declined Mr Slater’s application for security for costs and declined an application for an order permitting Mr Slater to file a fourth amended affirmative statement of defence;[1] and
(b)declined Mr Slater’s application to file a fifth amended affirmative statement of defence and ruled that Mr Slater was not permitted to give evidence in support nor cross‑examine on the defences of truth, honest opinion or bad character of Mr Blomfield.[2]
[1]Blomfield v Slater [2018] NZHC 2538.
[2]Blomfield v Slater [2018] NZHC 2679.
Mr Slater applied to adjudicate himself bankrupt in late February 2019. The Official Assignee formally abandoned the appeal in respect of the first appellant on 14 March 2019.
Mr Blomfield then sought to clarify the status of the appeal by the second appellant.[3] Cooper J confirmed that “[t]he appeal by the second appellant is deemed to be abandoned”.[4] Subsequently the shareholders of the second appellant appointed a liquidator who has not participated in the costs application.
[3]By memorandum dated 14 March 2019.
[4]Slater v Blomfield CA640/2018, 18 March 2019 (Minute of Cooper J).
The only participation by the Official Assignee in this matter is in a joint memorandum which states that the Official Assignee “neither consents to nor opposes the order for costs sought”. The parties have come to an agreement on how to deal with a costs order if one is made.[5]
[5]By joint memorandum dated 17 September 2019.
No agreement has been reached as to the amount of costs and disbursements to which Mr Blomfield might be entitled following the abandonment of the appeal.

Grounds

Mr…

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 Slater v Blomfield

Details

AGLC: Slater v Blomfield [2019] NZCA 664
Case: [2019] NZCA 664
Decision Date: 19 December 2019 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for indemnity costs by Matthew John Blomfield against Cameron John Slater and Social Media Consultants Limited (in liquidation). The appeal was abandoned by Slater and the Official Assignee did not oppose the costs application. The appeal had been commenced following judgments in the High Court relating to interlocutory applications made by Slater. Blomfield sought indemnity costs and disbursements after the appeal was abandoned. He argued that Slater's behaviour in commencing and continuing the appeal merited such a sanction and that Slater had misled the Court, caused delays and filed an appeal lacking in merit.

The Court considered the principles governing an award of indemnity costs, which included the conduct of the relevant party in the course of the appeal in question. While Slater had caused some delays due to a stroke he suffered, the Court did not consider his conduct warranted indemnity costs. Instead, the Court awarded increased costs of $10,000 to Blomfield. The Court also ordered that Slater and Social Media Consultants Limited were jointly and severally liable to pay Blomfield's disbursements and costs of briefing medical experts.

The Court declined Blomfield's application for indemnity costs and ordered that the sum held by the Registry for security for costs be paid out on the basis agreed between Blomfield and the Official Assignee. The Court considered that the amount of costs and disbursements claimed by Blomfield was excessive and did not reflect the true scale costs involved in the abandoned appeal.

Orders