Wilding v Te Mania Livestock Ltd - [2018] NZHC 1506

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2014-409-899 [2018] NZHC 1506

BETWEEN
TIMOTHY WILDING

First Plaintiff

TE MANIA PROPERTIES LIMITED Second Plaintiff

AND

TE MANIA LIVESTOCK LIMITED First Defendant

WH HOLDINGS LIMITED Second Defendant

JOHN HARRINGTON Third Defendant

JOONG BEE TECK Fourth Defendant

WONG CHUN WIN Fifth Defendant

HONG WEIGOU Sixth Defendant

Hearing: 3 August 2017

Appearances:

P J Dale and V E Fletcher for First and Second Plaintiffs B M Russell and R Hopkins for Second, Fourth and Fifth Defendants

I G Hunt and C Light for Third Defendant
No appearance for First Defendant
No appearance for Sixth Defendant

Judgment:

22 June 2018

Reissued:

20 July 2018

TIMOTHY WILDING v TE MANIA LIVESTOCK LIMITED [2018] NZHC 1506 [22 June 2018]

JUDGMENT OF NICHOLAS DAVIDSON J

CONTENTS

Section Heading
Paragraph

No.

A. B.

C.

D. D1.

D2.

INTRODUCTION ……………………………………………………

INTERIM JUDGMENT AND REASONS FOR INTERIM JUDGMENT …………………………………………………………. Election ………………………………………………………………..

REASONS FOR INTERIM JUDGMENT …………………………. The fate of TML ……………………………………………………… Leases ………………………………………………………………… Mixing of Wilding and TML interests ……………………………… The breakdown in relationships …………………………………….

2014 …………………………………………………………………… Stock management/neglect ………………………………………….. DOC Grazing Licence ………………………………………………. Liquidation of TML …………………………………………………. Malicious prosecution/abuse of process ……………………………. Hacking ………………………………………………………………. TML share valuation ………………………………………………… An exhaustive approach …………………………………………….. The pleading …………………………………………………………. Antecedent litigation ………………………………………………... Conduct of the parties ………………………………………………. Lagoon Flat ………………………………………………………….. TMPL and TML …………………………………………………….. The opportunity for Mr Wilding to purchase the shares …………. Costs …………………………………………………………………..

SUBMISSIONS AS TO COSTS …………………………………….

SUBMISSIONS FOR MR WILDING ……………………………… Offers to settle ……………………………………………………….. Considerations submitted for Mr Wilding …………………………. Mr Wing ………………………………………………………………

SUBMISSIONS FOR SECOND, FOURTH AND FIFTH DEFENDANTS/COUNTERCLAIMANTS, WHHL, BEETECK AND MR WONG ……………………………………………………. Offers to settle ………………………………………………………... Categorisation and Banding ………………………………………… Increased costs generally ……………………………………………. Indemnity costs sought by fourth defendant, Beeteck ……………..

50 per cent uplift ……………………………………………………... Computer hacking …………………………………………………… Semen ………………………………………………………………….

[1]

[4] [9]

[10] [11]

[12]

[14] [15]

[16]

[17] [18]

[19] [20] [21]

[22]

[23] [24]

[28] [32]

[36] [40] [41]

[47]

[48] [49]

[62]

[66] [75]

[76] [77]

[84] [89]

[91] [92] [93]

[94]

Length of trial ………………………………………………………... Actual costs …………………………………………………………… Timetable breaches ………………………………………………….. Mr Wing ………………………………………………………………

Disbursements ……………………………………………………….. The attempted liquidation of TML by Mr Harrington …………… Wadi ………………………………………………………………….. Success and failure …………………………………………………..

[95] [96]

[97] [98]

[99] [100] [101]

[102]

D3.

D4. E.

F.

SUBMISSIONS FOR MR HARRINGTON ……………………….. Offers…………………………………………………………………. Category and Banding ………………………………………………. “Success” ……………………………………………………………... The uplift sought by Mr Harrington ………………………………..

MR WILDING’S REPLY TO THE DEFENDANTS’ SUBMISSIONS ……………………………………………………….

DISCUSSION ………………………………………………………... Discretion …………………………………………………………….. Success ………………………………………………………………... Valuation ……………………………………………………………... Categorisation ……………………………………………………….. Banding ………………………………………………………………. Increased (uplift) costs ………………………………………………. Indemnity costs ………………………………………………………. Refusal of or reduction in costs ……………………………………... Calderbank and other offers ………………………………………... The two offers ………………………………………………………… Disbursements, – including Mr Wing, and experts ………………… Conclusion …………………………………………………………….. Revised Scale costs schedules ………………………………………… The final assessment ………………………………………………….. Costs on the issue of costs and interest on costs ……………………..

DISPOSITION ……………………………………………………….

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

[107] [113] [119]

[121]

[124]

[126] [138]

[139] [140] [160] [169]

[171]

[175] [181]…

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.

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Details

Case: [2018] NZHC 1506
Decision Date: 22 June 2018

CaseChat Overview and Summary

This case involved complex litigation between Timothy Wilding and various defendants, including Te Mania Livestock Limited and others, over the management and future of Te Mania Livestock Limited. The proceedings resulted in an interim judgment that Wilding should be given the opportunity to purchase the shares of the defendant shareholders in TML at a fair value determined by the Court. The case encompassed a wide range of issues including breaches of fiduciary duties, mismanagement, and the valuation of TML shares. The High Court of New Zealand, Christchurch Registry, was tasked with determining the costs associated with this extensive litigation.

The legal issues the court had to decide included whether the "costs follow the event" principle should apply, the appropriateness of awarding increased costs due to the refusal to accept settlement offers, and the implications of the defendants' alleged oppressive conduct on the litigation costs. The court had to consider the nature of the proceeding, the complexity, and the conduct of the parties in exercising its discretion on costs. Submissions on costs were detailed and thorough, reflecting the length and complexity of the trial, which occupied 32 days across two phases in 2016.

The court's reasoning took into account the overall success and failure of the parties, the conduct during the litigation, and the offers to settle that were made but not accepted. The court found that while all parties had some measure of success and failure, the litigation was excessively prolonged, largely due to the defendants' failure to accept an offer to confine the trial to share valuation. The court concluded that Wilding should bear some costs for this failure, but also recognised his successes in preventing the liquidation of TML and in securing the right to purchase the shares. The court recalculated the costs, considering the banding and categorisation of the proceedings, and the offer to confine the trial, which was rejected by Wilding. The final orders were made to reflect a fair and objective conclusion, ensuring that all outcomes and the conduct of the parties were brought to account. Wilding was ordered to pay certain costs to the second, fourth, and fifth defendants, as well as to the third defendant, Mr. Harrington. The court declined to make an order for "costs on costs" and reserved leave for any clarification required regarding the mathematical calculations.

Orders