HOUGHTON AND ANOR V SAUNDERS AND ORS HC CHCH CIV-2008-409-000348

HOUGHTON AND ANOR V SAUNDERS AND ORS HC CHCH CIV-2008-409-000348 4 September 2009IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2008-409-000348BETWEEN ERIC MESERVE HOUGHTON First Plaintiff AND DARRYL ALEXANDER JONES Second Plaintiff AND TIMOTHY ERNEST CORBETT SAUNDERS SAMUEL JOHN MAGILL JOHN MICHAEL FEENEY CRAIG EDGEWORTH HORROCKS PETER DAVID HUNTER PETER THOMAS JOAN WITHERS First Defendants AND CREDIT SUISSE PRIVATE EQUITY INC (FORMERLY CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY INC) Second Defendant AND CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP Third Defendant AND FIRST NEW ZEALAND CAPITAL Fourth Defendant AND FORSYTH BARR LIMITED Fifth Defendant Counsel: A J Forbes QC & PAB Mills for First Plaintiff G Wakefield for Second Plaintiff L Clarke for First Defendants A Olney for Second and Third Defendants R Butler for Fourth Defendant No appearance for Fifth Defendant Judgment: 4 September 2009JUDGMENT OF HON. JUSTICE FRENCH As to Costs[1] The parties have been unable to agree on costs issues arising out of: i) The third defendant's application for leave to appeal. ii) The costs on the stay and production applications.Costs arising out of the third defendant's application for leave to appeal[2] The third defendant seeks costs because the plaintiffs withdrew their opposition to the application at a very late stage. [3] The first plaintiff accepts the third defendant is entitled to costs against both the first and second plaintiffs on a 2B basis, except as to: (i) the costs claimed for the preparation of the application ($960); (ii) the disbursement airfare claimed for the appearance on 23 June 2009 ($196.73). [4] As regards the costs claimed for the preparation of the application, Mr Forbes submits these were not occasioned by any action on the part of the plaintiffs. The application had to be filed in any event, and was seeking an indulgence. However, that argument overlooks the point that the time allocation in 4.12 of the 3 rd schedule includes a time allocation for preparation of supporting affidavits. In this case, the supporting affidavits required significantly more time precisely because of the plaintiffs' opposition. In those circumstances, I consider the third defendant is entitled to the costs of $960 claimed. [5] The second item in dispute concerns a disbursement airfare of $196.73 claimed for the appearance on 23 June 2009. The reason the first plaintiff disputesthe appropriateness of this disbursement is because the first plaintiff had notified the withdrawal of his opposition prior to the date of hearing and therefore no appearance on the application was required. In a subsequent memorandum, counsel for the second defendant, Mr Olney, has however explained that the disbursement represents one-third of the travel costs which had been booked and paid for before the first plaintiff withdrew his opposition, and was therefore wasted. In those circumstances, I consider recovery is appropriate. [6] The first and second plaintiffs are accordingly ordered to pay the third defendant costs in the sum of $3028.73.Costs arising out of the stay and production applications[7] In my judgment of 24 July 2009, I expressed a provisional view that costs of these respective applications should lie where they fall. The defendants were successful on their application for a stay but unsuccessful on their application for production. [8] Since then, counsel for the second defendant however has applied for costs on the stay application. The submission is that costs should follow the event in regards to that application but lie where they fall on the application relating to the production of the documents. In support of that submission, counsel points to the plaintiffs' belated withdrawal of their opposition to the production of certain items and the effective deferral to discovery of another item. [9] I disagree. [10] As Mr Forbes submits, hearing time devoted to the stay application occupied less than half that devoted to the production application. I also accept the production application had to proceed to a hearing in any event and that the late offer to provide Professor Robb's report would have made little difference to the preparation for the hearing, as well as the length of the hearing itself.[11] I am not persuaded to depart from my provisional view, and therefore confirm that costs on both applications are to lie where they fall.Solicitors:Merely Chambers, Christchurch Wakefield & Associates, Christchurch A R Galbraith QC, Auckland Bell Gully, Auckland Clendons, Auckland Russell McVeagh, Wellington D McLellan, Auckland Jones Fee, Auckland McElroys, Auckland