STOKES v PRAIN [2021] NZCA 683

STOKES v PRAIN [2021] NZCA 683 [14 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA467/2020[2021] NZCA 683BETWEEN COLIN PETER STOKESAppellantAND JUSTIN WILLIAM PRAINFirst Respondent CARDNO (NZ) LIMITED Second Respondent GREGORY ROBERT SMITH Third RespondentHearing: 2 September 2021 (further submissions received 13 September 2021)Court: Gilbert, Duffy and Peters JJCounsel: Appellant in person J Moss for First Respondent M R C Wolff and H J Dempsey for Second Respondent Third Respondent in personJudgment: 14 December 2021 at 10 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal is dismissed subject to any adjustments required to the costs award to take account of the matters noted at [54] and [56] of this judgment.C The appellant must pay costs to the first and second respondents for a standard appeal on a band A basis and any usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] This is an appeal against a judgment of Associate Judge Lester dated 22 July 2020, in which the Associate Judge ordered Mr Stokes, the appellant, and Mr Smith, the third respondent, to pay costs on a 2B basis, increased by 40 per cent, and disbursements to the first and second respondents, Mr Prain and Cardno (NZ) Ltd (Cardno). 1 On the basis of the information before the Associate Judge, the increase brought the award to Mr Prain to $86,661.40 and to $87,665.20 for Cardno, plus disbursements.[2] The Associate Judge's decision on costs followed his earlier decision of 5 June 2020, granting applications by Mr Prain and Cardno to strike out Messrs Stokes and Smith's sixth amended statement of claim on the ground that it disclosed no reasonably arguable cause of action. 2 No appeal against the Associate Judge's decision to strike out has been brought by Mr Stokes (or Mr Smith). This appeal is against the decision on costs only. The significance of the lack of appeal against the decision to strike out is that we must proceed on the basis that decision was correct. Mr Prain and Cardno submit most of the grounds of appeal advanced against the Associate Judge's decision on costs are in fact an attempt to re-litigate his decision to strike out the sixth amended statement of claim.[3] On appeal, Mr Stokes submits that the award of costs should be quashed, and he also seeks to rely on an affidavit dated 16 November 2020 that he has filed in support of the appeal. Mr Stokes has not made a formal application to adduce this evidence, and its admission is opposed. We determine this matter below.[4] Although Mr Smith did not formally appeal against the Associate Judge's costs decision, we allowed him to make brief submissions at the hearing and then to file written submissions, recording his oral submissions, afterwards.1 Smith v Noble Investments Ltd [2020] NZHC 1766 [Costs judgment].2 Smith v Noble Investments Ltd [2020] NZHC 1236 [Strike out judgment].[5] Mr Prain and Cardno oppose the appeal. They also oppose us considering Mr Smith's submissions, given that he did not file a notice of appeal. While a party who chooses not to appeal would not normally be heard, Mr Smith is a respondent to the appeal, he is jointly and severally liable for the costs award and his submissions merely supported and supplemented the points advanced by Mr Stokes. Counsel for Mr Prain and Cardno were able to respond to Mr Smith's submissions at the hearing and in further written submissions filed after it. There is accordingly no prejudice. For these reasons, we considered the interests of justice were best served by the approach we adopted in the particular circumstances of this case.Appeal[6] An appeal against an award of costs is an appeal against the exercise of judicial discretion. An appellate court should not interfere with an award of costs unless satisfied that the Judge acted on a wrong principle, failed to take account of some relevant matter, factored in the irrelevant, or was plainly wrong. 3Background[7] It is necessary to set out the background in some detail, so as to put the submissions in context.[8] Messrs Stokes and Smith commenced proceedings in the High Court in 2014 seeking relief against Noble Investments Ltd (NIL), Apple Fields Ltd (AFL), Mr Prain, and Cardno.[9] The proceedings arose out of Messrs Stokes and Smith's purchase of land in a yet to be completed subdivision, with a Mr Philpott, from NIL in 2002. NIL had engaged AFL to manage the subdivision. Mr Prain was a director of AFL, and a relatively minor shareholder in the company. He provided consultancy services to NIL and AFL, either directly or through his company, Prain Consultants Ltd. Cardno was also engaged to provide planning, surveying, and civil engineering services to NIL.3 Kinney v Pardington [2021] NZCA 174 at [1] (footnotes omitted).[10] Messrs Stokes and Smith claimed that NIL had breached contractual obligations owed to them regarding the provision of access and services to their land, and that AFL, Mr Prain, and Cardno were themselves liable in respect of loss or damages caused as a result. They, along with other purchasers, had lodged caveats against NIL's land, which NIL unsuccessfully sought to remove. As is usual, however, the caveators were required to commence proceedings so that the underlying dispute could be determined. Hence the proceedings.[11] In April 2015, NIL and AFL brought a counterclaim against Messrs Stokes and Smith, and others who had lodged caveats against land owned by NIL.[12] AFL was removed from the Companies Register by mid-2018. This occurrence was the cause of considerable ill-will, Messrs Stokes and Smith submitting that Mr Prain had arranged for this step to be taken so as to avoid any possibility of a judgment against the company. NIL was also in liquidation by mid- 2018.[13] As a result of these events, Messrs Stokes and Smith's proceedings against both NIL and AFL were stayed, and the liquidators did not pursue the companies' counterclaim. 4 Accordingly, the merits of Messrs Stokes and Smith's claims against NIL and AFL were never determined. Only the case against Mr Prain and Cardno remained on foot and it was the pleading of this case that was in issue on the application to strike out. We emphasise this point because many of Mr Stokes' submissions put the underlying merits of his dispute with NIL and AFL in issue. That is not a matter we can determine and is irrelevant to this appeal in any event.Stay/strike out[14] In early 2019, Messrs Stokes and Smith, who were then unrepresented, filed a fifth amended statement of claim, which they were satisfied fully particularised their causes of action against Mr Prain and Cardno. This had been the cause of some issue in the previously filed statements of claim. Then, in March 2019, Associate Judge Matthews stayed the proceedings. This was on Cardno and Mr Prain's application,4 Companies Act 1993, s 248.but without opposition from Messrs Stokes and Smith who were then investigating matters regarding their own subdivision.[15] In December 2019, Mr Prain and Cardno each applied to strike out the fifth amended statement of claim. Alternatively, they applied for an order that the proceeding be dismissed or stayed for want of prosecution. 5 In response, Messrs Stokes and Smith made their own application to lift the stay.[16] Messrs Stokes and Smith instructed counsel, Mr Stringer, on the application to strike out. Mr Stringer prepared a sixth amended statement of claim in advance of the strike out hearing, which was treated as indicating the pleading that Messrs Stokes and Smith intended to file were the stay to be lifted.[17] In June 2020, Associate Judge Lester granted the application to strike out on the basis that the sixth amended statement of claim disclosed no reasonably arguable cause of action against either defendant.6 The cause of action pleaded against Mr Prain was in deceit, as it had been previously, and those against Cardno were in deceit and negligence, as they too had been previously. The Associate Judge was satisfied that there continued to be a failure to particularise the elements of the causes of action, apparently evident in earlier versions (although Mr Stokes is adamant not in the fifth amended statement of claim), and that there was no realistic prospect of that being remedied. 7 The Associate Judge also said that he would have dismissed the proceeding for want of prosecution even if he had not struck out the pleading. 8Costs[18] Having succeeded in striking out the pleading, Mr Prain and Cardno sought an award of costs in the proceedings. In the first instance, they sought costs on an indemnity basis but otherwise on a 2B basis, increased by 50 per cent.5 High Court Rules 2016, rr 15.1 and 15.2.6 Strike out judgment, above n 2.7 At [57].8 At [123].[19] In response, Mr Stokes, who by then had ceased to be represented by Mr Stringer, submitted that the Court should exercise its discretion not to order costs as most, if not all, of the grounds in r 14.7 of the High Court Rules 2016 (the Rules) on which the court may refuse costs were made out. If he failed in that submission, Mr Stokes submitted Mr Stringer should be ordered to pay the costs as he had prepared the deficient sixth amended statement of claim when the fifth, which Messrs Stokes and Smith had themselves prepared, had been properly particularised.[20] Mr Stringer, for Mr Smith, accepted that costs would "follow the event", that is that Mr Smith and Mr Stokes as the unsuccessful parties would be required to pay costs to the successful parties, Mr Prain and Cardno. 9 He submitted, however, that there was no basis for indemnity or increased costs.[21] The Associate Judge did not accept Mr Stokes' submission that there should be no order for costs. The Associate Judge held that the usual principle in r 14.2(1)(a) of the Rules applied, that is the unsuccessful party should pay costs to the successful party. 10[22] The Associate Judge declined to award indemnity costs but was satisfied that Mr Prain and Cardno were entitled to increased costs on the basis that Messrs Stokes and Smith's approach to the litigation against Mr Prain and Cardno had been unreasonable and had contributed to an increase in their costs. 11 The Associate Judge's specific reasons were as follows:(a) First, Messrs Stokes and Smith had previously brought a claim in contract against Cardno which could not have succeeded, and which had been abandoned.(b) Secondly, Messrs Stokes and Smith had failed to comply with directions of the Court or had delayed in doing so on numerous occasions.9 Costs judgment, above n 1, at [6].10 At [17].11 At [36] and [42].(c) Thirdly, that there had been at least six versions of the statement of claim, and that the most recent "recycled parts of previously criticised" pleadings, pointed to the claim being pursued unreasonably. 12(d) Fourthly, the plaintiffs had no grounds for pursuing causes of action in deceit against Mr Prain or Cardno.Costs principles[23] Although costs relating to a proceeding are at the discretion of the court, the discretion is not unconstrained and is to be exercised in accordance with pt 14 of the Rules. 13 Of particular note in this case are r 14.2 which sets out the general principles applicable to the determination of costs, and rr 14.6 and 14.7 which make provision for the circumstances in which the court may order increased or indemnity costs, or may refuse an order for costs or reduce the costs otherwise payable.Grounds of appeal[24] Mr Stokes contends there were exceptional circumstances that justified no costs order being made. Mr Smith acknowledges that costs should follow the event, but he contends that some of the costs awarded were not properly claimable. We turn now to the grounds of appeal as they appear in the notice of appeal and Messrs Stokes' and Smith's written submissions.NIL, AFL, Mr Prain, and Cardno closely aligned[25] Mr Stokes submits that in awarding costs to Mr Prain, the Associate Judge failed to take into account that Messrs Stokes and Smith's claim against NIL and AFL had been recognised as having merit, and that it was reasonable to proceed against Mr Prain and Cardno, as their interests were so closely aligned with those of the companies.[26] Clearly, there was some common interest between NIL, AFL, and Mr Prain, given that Mr McMenamin acted as counsel for all three whilst the companies12 At [41].13 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].remained parties to the litigation. Also, Mr Smith has provided us with a letter from Mr McMenamin to Mr Prain dated 19 April 2021 which refers to a cost sharing arrangement between the three. Whether Cardno's interests were aligned and, if so, how closely is unclear to us and, in any event, irrelevant save to the extent that Mr Prain and Cardno cannot recover costs they have not paid and will never have to pay (because they were paid by NIL and AFL prior to being struck off). Mr Prain and Cardno were defendants to the proceedings in their own right. Thus, as a matter of principle, and absent exceptional circumstances, they were entitled to an award of costs in the proceeding when the pleading was struck out as disclosing no reasonably arguable cause of action against either of them.NIL and AFL are losing parties[27] Mr Stokes submits that this case is akin to Avonmore Holdings Ltd v Trowebber Ltd, and that it would be unjust for Messrs Stokes and Smith to be required to pay costs to Mr Prain and Cardno whilst being denied costs against the companies due to their insolvency.14 Alternatively, Mr Stokes submits that the Associate Judge ought to have, but did not, make a Sanderson order against NIL and AFL, that is that they, rather than Messrs Stokes and Smith, should pay the costs of the successful defendants, Mr Prain and Cardno.15 A Sanderson order is an order that an unsuccessful defendant, rather than the plaintiff, pay the successful defendant's costs. The court has discretion to make such an order if satisfied it would be just in all of the circumstances. 16[28] Nothing before us indicates these submissions were made to the Associate Judge but we shall address them regardless.[29] In Avonmore, a plaintiff obtained judgment and an award of costs against the first defendant — a company — but failed against the second and third defendants, who were the directors and shareholders of the first defendant. Post-judgment and the award of costs, the second and third defendants placed the first defendant in liquidation so that the plaintiff's judgment and subsequent costs order against the first defendant went unsatisfied. Gendall J declined to order the plaintiff to pay costs to14 Avonmore Holdings Ltd v Trowebber Ltd HC Napier CIV-2003-441-43, 28 October 2005.15 Sanderson v Blyth Theatre Co [1903] 2 KB 533 (CA).16 Lane Group Ltd v D I & L Paterson Ltd [2000] 1 NZLR 129 (CA) at [82].the second and third defendants, on the grounds that to do so would be repugnant to justice. He considered the law would be brought into disrepute if a plaintiff, having succeeded against the company, could not recover costs whereas the company's sole directors and shareholders could do so.17[30] Mr Stokes submits that this case is similar, in that he and Mr Smith would have succeeded against NIL and AFL, had those companies remained in existence. In support of this submission, Mr Stokes referred us to the Associate Judge's acknowledgment that the plaintiffs had raised reasonably arguable causes of action against the companies. Mr Stokes also referred to the caveators' success in maintaining their caveats against NIL's challenge to them.[31] This case is not similar to Avonmore, and nor would a Sanderson order be appropriate. Messrs Stokes and Smith did not obtain judgment against NIL or AFL. The rationale for orders of the nature made in those cases is lacking.[32] Mr Stokes also submitted to us that Associate Judge Osborne (as he then was) had held that Mr Prain, NIL, and AFL (amongst others) were associated people or entities for the purpose of pooling orders under ss 271 and 272 of the Companies Act 1993. This is incorrect. There is no judgment to that effect. Rather, in a decision of 31 August 2018, the Associate Judge recorded that Mr Stokes intended to seek an order that the assets of NIL and its sole shareholder be pooled. 18Failure to consider arguments under r 14.7[33] Mr Stokes submits the Associate Judge failed to consider his submissions that costs should be refused or reduced on various grounds in r 14.7 or erred in implicitly rejecting those submissions. Mr Stokes is correct in that the Associate Judge did not expressly reject several submissions Mr Stokes made under this heading. This may be because a court is not required to give reasons for an order that costs should follow the event where the awarded costs are within the usual range applicable.19Regardless, we shall address Mr Stokes' submissions as best we can.17 Avonmore Holdings Ltd v Trowebber Ltd, above n 14, at [16].18 Smith v Noble Investments Ltd (in liq) [2018] NZHC 2294 at [13(b)].19 Manukau Golf Club Inc v Shoye Venture Ltd, above n 13, at [16].The proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding — r 14.7(e)[34] Mr Stokes submitted to the Associate Judge that the proceeding concerned a matter of public interest and that he and Mr Smith had acted reasonably in the conduct of the proceeding. 20 This submission was made on the ground that a former party to the proceedings, Delta Utility Services Ltd (Delta), owned by Dunedin City Council, had conspired with Mr Prain to defeat Messrs Stokes and Smith's interests. In response to that submission, the Associate Judge held, correctly, that r 14.7(e) requires, amongst other things, that the proceeding have merit and involve a matter of genuine public interest and importance beyond the interests of the unsuccessful party.21 We agree with the Associate Judge that neither of these criteria was met. The claim against Delta lacked merit as demonstrated by the fact it obtained summary judgment on its defence. No matters of public interest were engaged. 22Failing to comply with the rules or a direction of the Court — r 14.7(f)(i)[35] Mr Stokes contends this applies as Cardno failed to file a statement of defence to the fifth amended statement of claim and that NIL, AFL, and Mr Prain's first list of documents was incomplete. There was no requirement to file a defence to the fifth amended statement of claim because an application was instead made to strike it out. Given no reasonably arguable claim was found to have been pleaded, it must follow that any deficiency in the list of documents is inconsequential.Party claiming costs contributed unnecessarily to the time or expense of the proceeding by taking or pursuing an unnecessary step or argument that lacks merit — r 14.7(f)(ii)[36] Mr Stokes submitted to the Associate Judge that this ground was made out. It is not addressed in the Associate Judge's decision but, regardless, there is nothing in this submission. This provision is intended to apply where a party, although successful, put the unsuccessful party to pointless cost. That is not the case here.20 High Court Rules, r 14.7(e).21 Costs judgment, above n 1, at [16].22 At [14].Failing, without reasonable justification, to admit facts, evidence or documents or accept a legal argument — r 14.7(f)(iii)[37] The matter relied on under this heading is the underlying dispute as to how stormwater could be managed. Messrs Stokes and Smith had one view of that issue, the defendants or some of them another. None of this matters in this case where there is an unchallenged finding that no reasonably arguable cause of action was pleaded. Matters as to proof were not reached.Failing, without reasonable justification, to comply with an order for discovery etc — r 14.7(f)(iv)[38] The matter relied on here is a failure to disclose the existence of documents when first required to do so. It is not of such significance as to warrant any refusal or reduction in costs.Failing, without reasonable justification, to accept an offer of settlement intended to fall within r 14.7(f)(v)[39] The matter relied on here is discussions the parties are said to have had regarding an offer by Messrs Stokes and Smith to fund some of the infrastructure work required to complete the subdivision. This too falls outside this rule and is irrelevant to the issue of costs given that their claims were entirely struck out.Some other reason exists which justifies the Court refusing or reducing costs — r 14.7(g)[40] Mr Stokes relies here on what he contends is an unanswerable case against NIL and AFL, and what amounts to a conspiracy on the part of the defendants to defeat the plaintiffs' interests. As we have made clear, an appeal against an order for costs is not an opportunity to argue the merits of the dispute.Allegation of perjury[41] Mr Stokes' next submission was that we should vary the Associate Judge's decision on the basis of an allegation that Cardno's former manager, Mr Graham, perjured himself in affidavits he swore in 2012 in litigation concerning the caveatsreferred to above. In this regard, Mr Stokes wishes to adduce further evidence on appeal, being his affidavit of 16 November 2020.[42] In affidavits he swore in the 2012 litigation, Mr Graham responded to evidence from the caveators that stormwater, including from lot 9 (of which Messrs Stokes and Smith were two of three owners), might be drained to or across lots 12 to 15 of the development. Mr Graham's response was that this would not be possible "because of the upward slope from south to north".[43] At a chance encounter in September 2020, Mr Stokes complained to Mr Graham about this evidence. Mr Stokes recorded his conversation with Mr Graham and has exhibited a transcript of it. Mr Stokes' account of the conversation is that Mr Graham "stated in conversation that his and Mr Prain's affidavit evidence was knowingly false at the time".[44] The first and second respondents oppose the admission of Mr Stokes' evidence on several grounds, including that it does not evidence perjury, and is irrelevant to the issues on appeal.[45] We decline to admit this evidence on appeal. It is fresh in the sense that it was not available at the time of the judgment on costs, but it is neither cogent nor credible. 23The most that can be taken from the transcript is that Mr Graham was indicating to Mr Stokes that the caveators' proposed solution to the stormwater difficulties would have required the developer to sacrifice additional land. Even then, there may be a context of which we are unaware. Regardless, what is before us is a long way from evidence of a deliberate untruth, let alone one relevant to the merits of the Associate Judge's decision on costs. We decline to admit the evidence accordingly. This ground of appeal fails.Increased costs[46] We turn now to the submissions made regarding the Associate Judge's decision to award increased costs.23 R v Bain [2004] 1 NZLR 638 (CA) at [22].Judge wrong to criticise pleading[47] Mr Stokes submits the Associate Judge erred by treating the proposed sixth amended statement of claim, and not the fifth, as the relevant pleading.[48] There is nothing in this submission. The Associate Judge was right to proceed on the basis of the proposed pleading presented by Mr Stringer, in his capacity as counsel for Messrs Stokes and Smith.[49] Mr Stokes also submits the Associate Judge proceeded on the basis that Associate Judge Matthews had criticised the fifth amended statement of claim when, in fact, he had not done so. This submission is correct, but it was not a significant factor in the Associate Judge's costs decision.The cause of the delay[50] Mr Stokes next submits that the Associate Judge erred in attributing the delay in prosecuting the proceedings to Messrs Stokes and Smith, when in fact any delay was caused largely by the defendants. Mr Stokes says the Judge failed to consider that:(a) Mr Prain had rejected Messrs Stokes and Smith's attempts to resolve the dispute out of court, by offering to arrange finance for the subdivision's infrastructure. Rather, Mr Prain and Cardno had attempted to deceive Messrs Stokes and Smith into accepting impossible solutions.(b) Much of the delay was caused by "moving goalposts" as, following NIL and AFL's removal from the register, Messrs Stokes and Smith were required to add defendants and make different claims. Mr Prain contributed to this situation by causing NIL and AFL to be liquidated or dissolved as the case may be for no good reason.(c) The Associate Judge wrongly characterised the most recent stay of proceedings as a "final chance" for Messrs Stokes and Smith to fix theirpleadings. In fact, Cardno was responsible for the stay. Having failed to file a statement of defence to the fifth amended statement of claim in time, Cardno criticised it as confusing, and sought a stay of proceedings. Messrs Stokes and Smith generously consented to the stay despite being ready for the hearing.(d) Messrs Stokes and Smith were justified in bringing proceedings against Mr Prain and Cardno, as evidenced by their successful defence of their caveats.[51] We have already addressed (a) at [39] above. As to (b), Messrs Stokes and Smith were not required, but elected, to continue against Mr Prain and Cardno. The point made in (c) above is correct, but not significant. The point made in (d) is incorrect. NIL alone challenged the caveat(s).Quantum[52] This brings us to two further issues that Messrs Stokes and Smith raise on appeal.[53] The first issue, raised by both Mr Stokes and Mr Smith, is that Mr Prain and Cardno may only recover costs on steps taken in the proceedings that the plaintiffs brought against them.[54] This submission is correct. As Messrs Stokes and Smith submitted, the indicative schedules of costs provided to the Associate Judge include claims for costs in respect of NIL and AFL's counterclaim against them, to which neither Mr Prain nor Cardno was a party. Counsel for Mr Prain, Mr Moss, referred to the fact that the Judge had taken a "broad brush" approach to the items of cost and also that neither Mr Stokes nor Mr Stringer had challenged these items in the High Court. The short answer to this latter submission is that a claim for costs must be confined to costs claimable in the proceeding. Mr Prain and Cardno cannot claim the costs of taking a step (preparing and filing a counterclaim) they did not take. Likewise, there should only be one claim for each step unless that step was repeated because of some act or omission on the part of the plaintiffs. For instance, Mr Prain's schedule of costsincludes a claim in respect of a supplementary list of documents. That is a legitimate claim only if the supplementary list was required because of some act or omission on the part of Messrs Stokes and Smith. The costs schedules should be revised accordingly.[55] The second issue which arises is whether Mr McMenamin's representation of NIL, AFL, and Mr Prain combined, at least up until the companies ceased to be involved in the litigation, in itself affects the quantum of the costs to which Mr Prain may be entitled.[56] Rule 14.2(1)(f) provides that an award of costs should not exceed the costs incurred by the party claiming costs. Mr Prain may not recover a sum greater than the costs he incurred in fact. We have already addressed this issue at [26] above. Subject to those observations, we do not consider there should be any reduction on this account.Result[57] The application to adduce further evidence is declined.[58] The appeal is dismissed subject to any adjustment required to the costs award to take account of the matters noted at [54] and [56] of this judgment.[59] The appellant must pay costs to the first and second respondents for a standard appeal on a band A basis and any usual disbursements.Solicitors:K J McMenamin & Sons, Christchurch for First RespondentMorrison Kent, Wellington for Second Respondent