Wishart v Murray - [2016] NZHC 3133

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-001701

[2016] NZHC 3133

BETWEEN
IAN WISHART

Plaintiff

AND

CHRISTOPHER ROBERT MURRAY

First Defendant

KERRI MAREE MURRAY
Second Defendant

DIMENSION DATA NEW ZEALAND LIMITED

Third Defendant

Hearing: 4 August 2016

Appearances:

Plaintiff in person

D M Salmon and E D Nilsson for First and Second Defendants H B Rennie QC for Third Defendants

Judgment:

19 December 2016

JUDGMENT OF COURTNEY J

[Costs]

This judgment was delivered by Justice Courtney on 19 December 2016 at 2.50 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………….

WISHART v MURRAY & ORS (NO 3) [2016] NZHC 3133 [19 December 2016]

Introduction

[1]In this judgment I deal with applications for costs by:

(a)the first and second defendants, Mr and Mrs Murray, in relation to a strike-out application that I determined in March 2013;1

(b)the third defendant, Dimension Data New Zealand Ltd (DDNZ) under r 7.77(8) for costs in relation to the four amended pleadings filed by Mr Wishart;

(c)applications by all the defendants for increased or indemnity costs for steps taken between March and June 2016.

Chronology

[2] There has been a good deal of delay in this proceeding and a number of amended pleadings. These aspects are relevant to all the costs applications advanced and it is convenient to record a brief chronology at this point:

29 March 2012 Statement of claim filed

15 May 2012 Mr and Mrs Murray apply to strike out the statement of claim for security for costs

15 May 2012 DDNZ applies for summary judgment

17 October 2012 DDNZ withdraws application for summary judgment

19 May 2013
Mr and Mrs Murray’s strike-out and security

for costs application dismissed

10 July 2013 First amended statement of claim filed

31 July 2013 Proceedings stayed pending appeal against dismissal of strike-out and security for costs applications

19 September 2014
Court of Appeal allows appeal in part. Mr

Wishart given leave to amend pleadings.

17 October 2014 Second amended statement of claim filed

28 November 2014 Defendants seek further particulars and costs on 2013 strike-out applications

19 December 2014 Further particulars provided

1 Wishart v Murray [2013] NZHC 540.

6 March 2015 Third amended statement of claim filed

27 March 2015 DDNZ applies to strike out third amended statement of claim

16 April 2015 DDNZ applies for stay of proceedings

4 May 2015 Fourth amended statement of claim filed

12 June 2015 DDNZ files amended application for partial strike out or stay

22 December 2015 Proceeding stayed pending compliant pleading

31 March 2016 Mr Wishart files application to set aside stay with proposed draft fifth amended statement of claim

7 June 2016
Mr Wishart granted extension for filing draft

ASOC5

17 June 2016 Mr Wishart (through counsel) granted further extension

22 June 2016
Further draft ASOC6 (prepared with the

assistance of counsel, Mr Patterson)

22 June 2016 Next version of draft ASOC5 (prepared with the assistance of Mr Patterson)

24 June 2016
Draft ASOC5 (prepared with…

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 Wishart v Murray

Details

AGLC: Wishart v Murray [2016] NZHC 3133
Case: [2016] NZHC 3133
Decision Date: 19 December 2016

CaseChat Overview and Summary

In the case of Wishart v Murray, the High Court of New Zealand was called upon to determine several applications for costs made by the defendants in a defamation action brought by the plaintiff, Ian Wishart. The defendants, Christopher Robert Murray, Kerri Maree Murray, and Dimension Data New Zealand Limited (DDNZ), sought costs in relation to the strike-out application and subsequent amended pleadings filed by the plaintiff. The Court was tasked with deciding whether the defendants were entitled to costs under the relevant rules and precedents, and if so, the appropriate amount and basis for the award.

The court addressed the first and second defendants' application for costs in relation to the 2013 strike-out decision, noting that while both parties had some success, the significant number of statements struck out warranted an award of costs to the defendants on a 2B basis. The court also considered DDNZ's application for costs in relation to the amended pleadings, ruling that neither the relevant rule nor precedent allowed for costs to be fixed at that stage of the proceeding. Lastly, the court evaluated the defendants' applications for increased or indemnity costs for steps taken between March and June 2016, concluding that the defendants were entitled to costs for the notices of opposition and submissions in relation to the original application to lift the stay, with an uplift of 50% under the relevant rule.

The court's judgment provides a comprehensive analysis of the legal issues surrounding costs applications in this complex defamation case, taking into account the relevant rules, precedents, and the conduct of the parties. The court ultimately made orders for costs in favor of the defendants, while also considering the need for fairness and justice in the proceedings.

Orders