Stanley v Fielding-Link - [2023] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1257

[2023] NZHC 2872

IN THE MATTER
of an originating application seeking the High Court’s assistance in aid of the County Court at Liverpool, England in bankruptcy

under s 8 of the Insolvency (Cross Border) Act 2006

AND

IN THE MATTER

of the bankrupt estate of KAY SUZANNE FIELDING-LINK (England)

BETWEEN

PAUL STANLEY and PAUL BARBER

Plaintiffs

AND

KAY SUZANNE FIELDING-LINK (also

known as KAY SUZANNE LINK) Defendant

Counsel: J S Langston for the Plaintiffs S A Keall for the Defendant

Judgment:

13 October 2023

JUDGMENT OF WOOLFORD J

(Costs)

This judgment was delivered by me on Friday, 13 October 2023 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Shieff Angland (K Crossland), Auckland
Pidgeon Judd (L Judd), Auckland Counsel: S Keall and R Latton, Auckland

STANLEY v FIELDING-LINK [2023] NZHC 2872 [13 October 2023]

Introduction

[1] The plaintiffs, Mr Stanley and Mr Barber, are the joint trustees in the English bankruptcy of the defendant, Ms Fielding-Link. A letter of request for aid was issued from the English bankruptcy Court for this Court to act in aid of a proceeding in the United Kingdom. Pursuant to r s 8 of the Insolvency (Cross-border) Act 2006 (ICBA), the plaintiffs sought orders to give effect to the letter of request.

[2] The matter was initially set down for formal proof on 2 March 2023. However, on 1 March 2023 defence counsel filed a memorandum and draft statement of defence. Counsel for the defence requested leave to file a statement of defence, citing that for a number of reasons, including counsel illness, filing of the statement of defence had inadvertently been overlooked. By minute dated 2 March 2023,1 I granted leave to the defendant to file a statement of defence and evidence and adjourned the proceeding for a substantive hearing before Campbell J on 12 June 2023.2

[3] In granting leave, I acknowledged that there had been an element of wasted costs and invited the parties to agree on a suitable sum, or otherwise file memoranda. The parties could not reach agreement.

Approach

[4] It is well settled that there is jurisdiction to order a party to pay wasted costs where they have defaulted and caused a fixture to be vacated.3 This jurisdiction is not provided for in the High Court Rules 2016 and is an exception to the usual rule that costs follow the event, as there has been no “event” in this case.

[2] The authors of McGechan on Procedure helpfully summarise the approach as follows:4
(1) Jurisdiction

…

1      Stanley v Fielding-Link HC Auckland CIV 2022-404-1257, 2 March 2023.
2      Stanley v Fielding-Link [2023] NZHC 2259.
3      Jeffreys v Morgenstern [2013] NZHC 1361 at [31].
4      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HRPt14.16A].

The rationale for the jurisdiction is twofold:

(a) To compensate the other party or…

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 Stanley v Fielding-Link

Details

AGLC: Stanley v Fielding-Link [2023] NZHC 2872
Case: [2023] NZHC 2872
Decision Date: 13 October 2023

CaseChat Overview and Summary

The plaintiffs, Mr Stanley and Mr Barber, acting as joint trustees in the English bankruptcy of Ms Kay Suzanne Fielding-Link, sought an order from the High Court of New Zealand to aid the County Court at Liverpool, England, in bankruptcy proceedings. The application was made under section 8 of the Insolvency (Cross-Border) Act 2006. The defendant, Ms Fielding-Link, contested the application by filing a statement of defence, which was initially overlooked due to counsel's illness. The matter was adjourned for a substantive hearing.

The court had to determine whether Ms Fielding-Link should be ordered to pay wasted costs to the plaintiffs as a result of the adjournment. The plaintiffs argued that costs incurred during the initial fixture were wasted, including the preparation of a bundle of authorities. The defendant contended that the costs were not wasted because the authorities prepared for the initial fixture were largely the same as those needed for the substantive hearing.

The court held that it had jurisdiction to order a party to pay wasted costs in cases of default. The rationale behind such an order was to compensate the non-defaulting party and to impose a sanction on the defaulting party. The court found that while some costs were indeed wasted, the preparation of the bundle of authorities was not, as the authorities were nearly identical between the two fixtures. Therefore, the court awarded wasted costs and disbursements of $2,559.50 to the plaintiffs, excluding the step for preparing the 2 March BOA.

In summary, the court granted the plaintiffs' claim for wasted costs to a limited extent, excluding the cost associated with preparing the bundle of authorities, and ordered Ms Fielding-Link to pay $2,559.50 in wasted costs and disbursements.

Orders