Sudan v West - [2025] NZHC 984

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000953

[2025] NZHC 984

UNDER the Companies Act 1993

BETWEEN

SUNNY SUDAN

Plaintiff

AND

ANNETTE WEST

First Defendant

360FIXIT LIMITED
Second Defendant

WEST FACILITY MANAGEMENT LIMITED

Third Defendant

Hearing: On the papers

Appearances:

P Rice for the Plaintiff

T Ashley for the First Defendant

Judgment:

29 April 2025

COSTS JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 29 April 2025 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................

Solicitors:

Gaze Burt, Auckland
B Parshotam, Auckland

P Rice, Auckland S Wroe, Auckland

SUDAN v WEST [2025] NZHC 984 [29 April 2025]

Introduction

[1]On 12 March 2025 the Court determined two applications:

(a)the first defendant’s application for particular discovery against the plaintiff and that the plaintiff clarify the steps he took to discharge his discovery obligations; and

(b)an application by the plaintiff challenging the first defendant’s claim to confidentiality of two categories of documents disclosed in her list of documents.

Particular discovery application and its result

[2] The Court considered that the particular discovery application was best dealt with by considering the documents in two categories, being Category A and Category B documents.

[3] The first defendant was unsuccessful in her application for Category A documents, other than in relation to disclosure of ‘WhatsApp’ messages between the plaintiff and staff / contractors / franchisees of 360Fixit Limited (360Fixit).

[4] The first defendant was unsuccessful in her application for particular discovery of Category B documents.

[5] The first defendant was unsuccessful in her application that the plaintiff clarify the steps he took to comply with his discovery obligations.

Application to set aside confidentiality claim and its result

[6] The plaintiff applied to have the first defendant’s claim to confidentiality in her discovery affidavit set aside.

[7] There were two categories of documents in relation to which the first defendant had claimed confidentiality:

(a)job sheets for 360Fixit and the third defendant, West Facility Management Limited; and

(b)the first defendant’s personal bank statements

[8] That application was granted, with the Court ordering the plaintiff to provide a confidentiality undertaking in order to access the first defendant’s personal bank statements.

Costs application

[9]The parties have been unable to agree on costs.

[10] The starting point on costs is that generally in relation to the determination of costs:

(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds;

(b)an award of costs should reflect the complexity and significance of the proceeding;

(c)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required, in relation to the proceeding or interlocutory application;

(d)an award of costs should not exceed the costs incurred by the party claiming the costs, and

(e)so far as possible, the determination of costs should be predictable and expeditious.

[11] At the end of…

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 Sudan v West

Details

AGLC: Sudan v West [2025] NZHC 984
Case: [2025] NZHC 984
Decision Date: 29 April 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Sunny Sudan, the plaintiff, filed a case against Annette West, the first defendant, along with two other defendants, 360FIXIT LIMITED and WEST FACILITY MANAGEMENT LIMITED. The case involved two main applications: the first defendant's application for particular discovery against the plaintiff, and the plaintiff's challenge to the first defendant's claim to confidentiality for certain documents. The court needed to determine whether the plaintiff had adequately fulfilled his discovery obligations and whether the first defendant's claim to confidentiality was valid.

The court analyzed the applications and found that the first defendant was unsuccessful in her application for particular discovery of most documents, except for 'WhatsApp' messages between the plaintiff and staff/contractors/franchisees of 360Fixit Limited. The court also dismissed the first defendant's application that the plaintiff clarify the steps he took to comply with his discovery obligations. However, the plaintiff's application to set aside the first defendant's claim to confidentiality for certain documents was successful, except for the first defendant's personal bank statements, which required a confidentiality undertaking for access.

The court exercised its discretion in determining costs, taking into account the complexity and significance of the proceeding, as well as the parties' positions. The plaintiff argued that he was successful in opposing most of the first defendant's application and should be awarded costs category 2B. The first defendant, on the other hand, contended that costs should either lie where they fall or be awarded to both parties to reflect the partial success they both achieved on the applications. The court decided that costs category 2B applied to all steps in both applications, and the plaintiff was entitled to 75% of the costs incurred on a 2B basis for both applications. The court granted the plaintiff 75% of the claimed costs, excluding the cost of preparing the bundle for hearing, and also granted the plaintiff's disbursements.

The court ordered the plaintiff to pay the first defendant 75% of the costs incurred on a 2B basis for both applications, excluding the cost of preparing the bundle for hearing, and also granted the plaintiff's disbursements. This decision reflects the court's assessment of the parties' success on the applications and the appropriate costs category for the proceeding.

Orders