GASKIN v STARK [2020] NZHC 2519

GASKIN v STARK [2020] NZHC 2519

The plaintiffs were put on notice by the fourth defendant's solicitors and failed to investigate or accept documentary evidence showing the correct corporate entity was Mead Stark Ltd; because the plaintiffs pursued an argument that lacked merit and failed without reasonable justification to accept the facts, the fourth defendant was entitled to costs on the interlocutory application on a 2B basis with a 50% uplift for the unreasonable conduct and separate 2A costs for preparation of submissions on costs; it was inappropriate to treat the interlocutory application as if it were an originating application for costs purposes.

Citation
[2020] NZHC 2519
Parties
Plaintiffs: GRAHAM KENNETH GASKIN and ELIZABETH JOAN DUSTIN, as trustees of the DUSTIN FAMILY TRUST; First Defendant: ALASTAIR DAVID STARK by his litigation guardian CAROLINE ANN STARK; Second Defendant: ALAN BEVIN McKAY; Third Defendant: RICHARD DRUMMOND FRASER; Fourth Defendant: MEAD STARK LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 September 2020
Procedural Posture
Proceeding Under the Companies Act 1993 (civil Claim Based on Deed of Assignment) / Interlocutory Applications Determined on the Papers: Application for Summary Judgment and Application to Substitute the Fourth Defendant
Outcome
Order substituting Mead Stark Ltd as fourth defendant (as previously made) and costs awarded to the fourth defendant
Legal Topics
Deed of Assignment, Substitution of Parties, Identity of Party, Summary Judgment, Costs Uplift for Unreasonable Conduct
Company Law Civil Procedure Costs Trusts/assignment of Rights Deed of Assignment Substitution of Parties Identity of Party Summary Judgment +1 more

Case Brief

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Parties

GRAHAM KENNETH GASKIN and ELIZABETH JOAN DUSTIN, as trustees of the DUSTIN FAMILY TRUST

Plaintiffs

ALASTAIR DAVID STARK by his litigation guardian CAROLINE ANN STARK

First Defendant

ALAN BEVIN McKAY

Second Defendant

RICHARD DRUMMOND FRASER

Third Defendant

MEAD STARK LIMITED

Fourth Defendant

Procedural Posture

Proceeding Under the Companies Act 1993 (civil Claim Based on Deed of Assignment) / Interlocutory Applications Determined on the Papers: Application for Summary Judgment and Application to Substitute the Fourth Defendant

Legal Issues

  1. 1 Whether the deed of assignment referred to a non‑existent entity and so defeated the plaintiffs' right to bring the claim
  2. 2 Whether substitution of the correctly named fourth defendant (Mead Stark Ltd) was appropriate
  3. 3 Whether the fourth defendant was entitled to costs and an uplift for the plaintiffs' conduct

Ratio Decidendi

The plaintiffs were put on notice by the fourth defendant's solicitors and failed to investigate or accept documentary evidence showing the correct corporate entity was Mead Stark Ltd; because the plaintiffs pursued an argument that lacked merit and failed without reasonable justification to accept the facts, the fourth defendant was entitled to costs on the interlocutory application on a 2B basis with a 50% uplift for the unreasonable conduct and separate 2A costs for preparation of submissions on costs; it was inappropriate to treat the interlocutory application as if it were an originating application for costs purposes.

Court Disposition

Order substituting Mead Stark Ltd as fourth defendant (as previously made) and costs awarded to the fourth defendant

Orders

  • Mead Stark Ltd substituted for 'Mead and Stark' as fourth defendant
  • Fourth defendant awarded costs: 2B scale costs plus a 50% uplift for step 22 together with the filing fee of NZD 200, and 2A scale costs for step 24 for preparation of submissions on costs