JACOMB AND ANOR V WIKELEY (COSTS) HC WN CIV-2010-485-997

JACOMB AND ANOR V WIKELEY (COSTS) HC WN CIV-2010-485-997

The general rule in NZI Bank v Philpott applies; the defendant did not show that this was an exceptional case of abuse or certain knowledge of failure by the plaintiffs and his tactical non-disclosure weighs against awarding costs, so costs are declined and reserved pending final outcome.

Citation
openlaw-12fe0c40_fbd2_4558_8b04_197dcb008b92.pdf
Parties
Plaintiff: Michael John Jacomb; Plaintiff: Trena Kathleen Jacomb; Plaintiff: Peter Reginald Richardson; Defendant: Kenneth David Wikeley (also calling himself Kenneth David Wikley)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 November 2010
Procedural Posture
Summary Judgment (costs) / Post Summary Judgment Costs Application; Costs Reserved Pending Final Outcome
Outcome
Costs not awarded to defendant; costs reserved pending final outcome of the dispute
Legal Topics
Summary Judgment, Costs Reservation, Abuse of Process, Interpretation of Guarantee
Civil Litigation Civil Procedure Costs Guarantee and Suretyship Summary Judgment Costs Reservation Abuse of Process Interpretation of Guarantee

Case Brief

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Parties

Michael John Jacomb

Plaintiff

Trena Kathleen Jacomb

Plaintiff

Peter Reginald Richardson

Plaintiff

Kenneth David Wikeley (also calling himself Kenneth David Wikley)

Defendant

Procedural Posture

Summary Judgment (costs) / Post Summary Judgment Costs Application; Costs Reserved Pending Final Outcome

Legal Issues

  1. 1 Whether costs should be awarded to a defendant who successfully opposed a summary judgment application
  2. 2 Whether the exception in NZI Bank v Philpott applies to permit awarding costs on an unsuccessful summary judgment application
  3. 3 Whether the guarantee created an obligation to repay prior to the loan falling due

Ratio Decidendi

The general rule in NZI Bank v Philpott applies; the defendant did not show that this was an exceptional case of abuse or certain knowledge of failure by the plaintiffs and his tactical non-disclosure weighs against awarding costs, so costs are declined and reserved pending final outcome.

Court Disposition

Costs not awarded to defendant; costs reserved pending final outcome of the dispute

Orders

  • Declined to award costs to the defendant on the summary judgment application
  • Costs reserved for determination at final outcome or on any subsequent successful summary judgment application