Wagner v Gill - [2014] NZHC 207

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003509 [2014] NZHC 207

BETWEEN NICOLA JOANNE WAGNER Plaintiff

ANDROBERT GILL First Defendant

DIGITAL PARTNERS LIMITED (IN RECEIVERSHIP)
Second Defendant (Discontinued)
DIGITAL PARTNERS (NZ) LIMITED Third Defendant
Continued on page 2

Hearing: On the papers

Counsel: PAC Maw for the Plaintiff
A Gilchrist for the First, Third, Fifth, Sixth and Ninth
Defendants

Judgment: 19 February 2014

COSTS JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 19 February at 12 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:…………………………

Counsel:
PAC Maw, Wynn Williams, Christchurch
A Gilchrist, Barrister, Auckland

WAGNER v GILL [2014] NZHC 207 [19 February 2014]

BA PARTNERS LIMITED (IN RECEIVERSHIP)
Fourth Defendant (Discontinued)

BRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED
Fifth Defendant

CPG YORK LIMITED Sixth Defendant

91991 LIMITED (IN RECEIVERSHIP) Seventh Defendant (Discontinued)

11260 LIMITED (IN RECEIVERSHIP) Eighth Defendant (Discontinued)

BRAND ADVANTAGE LIMITED Ninth Defendant

[1] This judgment needs to be read in conjunction with the substantive judgment in which I found for the first, third, fifth, sixth and ninth defendants and indicated my view that 2B costs should be payable to them by Mrs Wagner.1 I do not propose to set out the complex factual and legal background to the case here.

[2] Suffice it to say that, further to my judgment, the parties have been able to agree about the quantum of 2B costs ($47,585) payable by Mrs Wagner to the first, third, fifth, sixth and ninth defendants. Disbursements of $21,377.27, $530 and
$217.60 are also agreed.

[3] But the defendants also say that Mrs Wagner should be liable for the increased costs of $60,000. The basis upon which increased costs are claimed is a so-called Calderbank letter written on their behalf to Mrs Wagner dated 20
December 2011.

[4] In the letter, Dyer Whitechurch referred specifically to two factual matters

underlying Mrs Wagner’s claim which (the lawyers said) were incorrect, namely:

(a) The allegation that “the Netball contract was transferred” (rather than terminated); and

(b)The allegation that Mrs Wagner’s previous businesses that had been sold by receivers appointed by Mr Gill’s interests were profitable prior to the sale.

[5] Nothing was said in the letter about the relationship between these allegations and the causes of action in the statement of claim or the legal merits of the claims Mrs Wagner was advancing. Rather, the letter simply detailed some reasons for the defendants’ contention that these factual allegations were wrong and warned against Mrs Wagner relying on information from Messrs Regan and Beattie (as to whom, see
my substantive judgment). Dyer Whitechurch then invited Mrs Wagner to:

1 Wagner v Gill [2013] NZHC 1304.

(a) Withdraw the proceedings; and

(b) Agree to pay scale costs.

[6] Mrs Wagner was given over the Christmas period to consider this invitation which, it was said, was to be regarded as a Calderbank offer. She was advised that if she did not accept the offer, indemnity costs would later be sought.

[7]…

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 Wagner v Gill

Details

AGLC: Wagner v Gill [2014] NZHC 207
Case: [2014] NZHC 207
Decision Date: 19 February 2014

CaseChat Overview and Summary

The case of Wagner v Gill was heard in the High Court of New Zealand, Auckland Registry. The plaintiff, Nicola Joanne Wagner, was engaged in a dispute with several defendants, including Robert Gill, Digital Partners Limited, and others. The plaintiff's claims were primarily related to the termination of a netball contract and the sale of her businesses, which she alleged were part of a conspiracy by the defendants to injure her interests. The court was required to determine whether the claims were legally valid and if the plaintiff should be liable for increased costs due to the unsuccessful prosecution of her claims.

The legal issues before the court included whether the netball contract was indeed terminated and not transferred, as well as whether the sale of the plaintiff's businesses was part of a conspiracy or involved unlawful acts by the defendants. The court also needed to assess the basis for any potential award of increased costs under the relevant rules, specifically in light of a Calderbank letter issued by the defendants. The Calderbank letter suggested certain factual inaccuracies in the plaintiff's claims and invited her to withdraw the proceedings or agree to pay costs. The plaintiff opposed the application for increased costs, arguing that the letter did not fit the criteria for such an award.

The court concluded that the Calderbank letter did not provide a compelling reason for the plaintiff to withdraw her claims, as the critical issues were not adequately addressed in the letter. The court found that the factual allegations identified in the letter were not determinative of the underlying legal issues, which involved complex and novel legal principles. Given the findings in the substantive judgment, the court decided that the plaintiff's persistence with her claims, despite the challenges, was not unreasonable. Consequently, the court did not award increased costs to the defendants.

In summary, the court directed that Nicola Joanne Wagner is to pay the defendants the agreed sum of costs and disbursements on a 2B basis, without any additional increased costs.

Orders