BEVERLEY v DRYLANDCARBON GP ONE LTD [2023] NZHC 586

BEVERLEY v DRYLANDCARBON GP ONE LTD [2023] NZHC 586

The Court determined the leave application was of above-average complexity requiring category 3 costs. Time allocations were mixed between bands B and C as appropriate; a requested 50% uplift for affidavit preparation was denied because the opposing party's evidence was not unreasonably or unnecessarily filed. Second counsel was certified as necessary. Expert witness fees were allowed as disbursements after review of invoices and relevance to issues raised by the respondents. Costs of $48,449.25 and disbursements of $25,824.57 were awarded against the fourth and fifth respondents.

Citation
[2023] NZHC 586
Parties
Applicant: Anthony Beverley; Applicant: Wendy Beverley; First Respondent: Drylandcarbon GP One Limited; Second Respondent: Drylandcarbon One Management Limited; Third Respondent: DC One H1 Limited; Fourth Respondent: William James Waterhouseleckie; Fifth Respondent: Christopher Gordon Lewis Morrison; Sixth Respondent: Lewis Tucker and Company Limited; Seventh Respondent: Pheasant Tail Holdings Limited; Eighth Respondent: Lewis Tucker Forest Partners Limited; Ninth Respondent: Lewis Tucker FP Investments Limited; Tenth Respondent: Forest Partners GP Limited; Eleventh Respondent: Lewis Tucker FP Management Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 March 2023
Procedural Posture
Leave Application Under S 165 Companies Act 1993 (derivative Action) / Costs Determination Following Grant of Leave
Outcome
Applicants awarded costs and disbursements against the fourth and fifth respondents (the Directors).
Legal Topics
Derivative Action, Leave Under S165, Costs Assessment, Second Counsel Certification, Expert Witness Disbursements, Categorisation of Proceedings
Company Law Civil Procedure Costs Derivative Action Leave Under S165 Costs Assessment Second Counsel Certification Expert Witness Disbursements +1 more

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Parties

Anthony Beverley

Applicant

Wendy Beverley

Applicant

Drylandcarbon GP One Limited

First Respondent

Drylandcarbon One Management Limited

Second Respondent

DC One H1 Limited

Third Respondent

William James Waterhouseleckie

Fourth Respondent

Christopher Gordon Lewis Morrison

Fifth Respondent

Lewis Tucker and Company Limited

Sixth Respondent

Pheasant Tail Holdings Limited

Seventh Respondent

Lewis Tucker Forest Partners Limited

Eighth Respondent

Lewis Tucker FP Investments Limited

Ninth Respondent

Forest Partners GP Limited

Tenth Respondent

Lewis Tucker FP Management Limited

Eleventh Respondent

Procedural Posture

Leave Application Under S 165 Companies Act 1993 (derivative Action) / Costs Determination Following Grant of Leave

Legal Issues

  1. 1 Appropriate costs category (2 v 3) and daily recovery rate
  2. 2 Appropriate time allocation per step and whether 50% affidavit uplift justified
  3. 3 Whether second counsel certification was justified

Ratio Decidendi

The Court determined the leave application was of above-average complexity requiring category 3 costs. Time allocations were mixed between bands B and C as appropriate; a requested 50% uplift for affidavit preparation was denied because the opposing party's evidence was not unreasonably or unnecessarily filed. Second counsel was certified as necessary. Expert witness fees were allowed as disbursements after review of invoices and relevance to issues raised by the respondents. Costs of $48,449.25 and disbursements of $25,824.57 were awarded against the fourth and fifth respondents.

Court Disposition

Applicants awarded costs and disbursements against the fourth and fifth respondents (the Directors).

Orders

  • Costs awarded to applicants in the sum of 48,449.25 NZD to be paid by the fourth and fifth respondents
  • Disbursements awarded to applicants in the sum of 25,824.57 NZD (including filing fee and expert fees)