MCKENNA & Anor AS TRUSTEES OF THE N A MCKENNA TRUST V BANK OF NEW ZEALAND HC AK CIV-2012-404-5998

MCKENNA & Anor AS TRUSTEES OF THE N A MCKENNA TRUST V BANK OF NEW ZEALAND HC AK CIV-2012-404-5998

The court awarded the applicant costs for preparing, filing and serving the r 8.20 application and for attending mentions because it was necessary to obtain access to the documents; separately the court held that commonsense and fairness entitled the respondent to recover the costs of actually providing the discovery even though no formal order under r 8.22 was made, and the court may make such an order under its general powers where the Rules make no provision.

Citation
openlaw-a9013106_adde_4846_9e53_9f4738326c65.pdf
Parties
Intended Plaintiff (trustee of the N a Mc Kenna Trust): Nigel Anthony McKenna; Intended Plaintiff (trustee of the N a Mc Kenna Trust): John Charles Stringer; Intended Defendant: Bank of New Zealand
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 November 2012
Procedural Posture
Pre Commencement Discovery Application / Interlocutory – Application for Discovery and Costs After Voluntary Compliance
Outcome
Costs split: applicant awarded costs of making the r 8.20 application; respondent awarded costs of providing the discovery; no costs order under r 8.22 was possible but court made a just order for compliance costs.
Legal Topics
Pre Commencement Discovery, Costs Orders, Voluntary Compliance, Court's Inherent Jurisdiction
Civil Procedure Discovery Costs Pre Commencement Discovery Costs Orders Voluntary Compliance Court's Inherent Jurisdiction

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Parties

Nigel Anthony McKenna

Intended Plaintiff (trustee of the N a Mc Kenna Trust)

John Charles Stringer

Intended Plaintiff (trustee of the N a Mc Kenna Trust)

Bank of New Zealand

Intended Defendant

Procedural Posture

Pre Commencement Discovery Application / Interlocutory – Application for Discovery and Costs After Voluntary Compliance

Legal Issues

  1. 1 Whether applicant is entitled to costs for bringing a r 8.20 pre-commencement discovery application
  2. 2 Whether a party that voluntarily provides discovery is nevertheless entitled to recover costs of providing that discovery where no formal discovery order was made
  3. 3 Whether the Rules (r 8.20, r 8.21, r 8.22) permit an order for costs of providing discovery absent a prior order and whether the court may make such an order nonetheless

Ratio Decidendi

The court awarded the applicant costs for preparing, filing and serving the r 8.20 application and for attending mentions because it was necessary to obtain access to the documents; separately the court held that commonsense and fairness entitled the respondent to recover the costs of actually providing the discovery even though no formal order under r 8.22 was made, and the court may make such an order under its general powers where the Rules make no provision.

Court Disposition

Costs split: applicant awarded costs of making the r 8.20 application; respondent awarded costs of providing the discovery; no costs order under r 8.22 was possible but court made a just order for compliance costs.

Orders

  • Applicant awarded costs for preparing, filing and serving the r 8.20 application and for attending any mentions necessary to schedule a hearing
  • Respondent entitled to costs of providing the discovery despite no formal order having been made under r 8.22