Van de Waardt v Van de Waardt

[2020] NZHC 534

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1232

[2020] NZHC 534

BETWEEN

JAMES ARY VAN DE WAARDT and MR TRUSTEE COMPANY 2014 LTD as

trustees of the Darwin Trust Intending Plaintiffs

AND

ADRIAN PETER VAN DE WAARDT

First Intended Defendant

LINDA HELENE VAN DE WAARDT

Second Intended Defendant

Hearing:	On the papers
Appearances:	S L Robertson QC / A H H Choi for Intending Plaintiffs M C Ryan for Intended Defendants
Judgment:	17 March 2020

JUDGMENT OF LANG J

[as to costs]

This judgment was delivered by me on 17 March 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

VAN DE WAARDT v VAN DE WAARDT [2020] NZHC 534 [17 March 2020]

[1]    In this proceeding the intending plaintiffs sought pre-commencement discovery of documentation relating to the sale of a business by the intending defendants. They sought the documents to assist them in formulating a claim against the intending defendants, who were the vendors of the business. The intending plaintiffs seek to enforce their contractual right to a share of any profit derived from the sale of the business.

[2]    The intending defendants did not file any documents in opposition to the application. Instead, counsel filed a joint memorandum shortly before the first call of the proceeding confirming the intending defendants were prepared to swear an affidavit as sought by the application and to make the documents listed in the affidavit available for inspection by a nominated date.

[3]    This has now occurred, and the intending plaintiffs discontinued the proceeding on 31 October 2019.

[4]    The intending plaintiffs seek an award of costs in their favour because they say they were wholly successful and that they should not have been required to commence the proceeding. They say the intending defendants had ample opportunity to voluntarily provide the documents before the proceeding was issued.

[5]    The intending defendants oppose any award of costs being made. They say the intending plaintiffs were not successful in bringing their claim. Rather, the intending defendants agreed to provide the documents voluntarily “as a matter of pragmatism”. They say they took this step because they believed the documents would demonstrate to the intending plaintiffs that their proposed claim has no merit.

[6]    It appears the defendants’ optimism was misplaced because the intending plaintiffs say the documents they have received show that the sale of the business resulted in a profit of approximately $300,000, and they contractually entitled to receive 49 per cent of this sum. They intend to issue a proceeding in the District Court seeking recovery of the amount to which they say they are entitled.

[7]    I take the view that the intending plaintiffs were the successful party in the proceeding. They only filed the proceeding after the intending defendants failed to respond to earlier requests for the documents to be provided. I therefore award costs to the intending plaintiffs on a category 2B basis together with disbursements as fixed by the Registrar.

Lang J