MURRELL V MIRKIN (AS TRUSTEES OF THE W E HAMILTON FAMILY TRUST) HC DUN CIV-2012-412-000336

MURRELL V MIRKIN (AS TRUSTEES OF THE W E HAMILTON FAMILY TRUST) HC DUN CIV-2012-412-000336

Applying the discretion in r 8.22(3) and relevant authorities, the Court assessed the invoices, found the discovery order related only in part to materials that will be used in the substantive Devon Street claim, apportioned the solicitor's invoice so that 30% related strictly to discovery for assets not relevant to the substantive proceeding, and concluded it was just to order the intending plaintiff to pay $2,800 on account of the intended defendants' costs of complying with the discovery order; accountant's fees were not ordered.

Citation
openlaw-68c60bf0_fee4_49a8_9e01_43ae80d337b3.pdf
Parties
Intending Plaintiff: Jane Maree Murrell; Intended Defendant (trustee): Geoffrey Mirkin; Intended Defendant (trustee): William Elliott Hamilton (as trustee of the W E Hamilton Family Trust)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 November 2012
Procedural Posture
Civil — Discovery and Trust/property Dispute / Costs Determination Following Pre Commencement Discovery and Filing of Substantive Proceeding
Outcome
Intending plaintiff ordered to pay part of the intended defendants' costs of complying with the discovery order
Legal Topics
Pre Commencement Discovery, Discovery Orders, Costs Orders, Constructive Trust, De Facto Relationship
Civil Procedure Trusts Property Law Costs Pre Commencement Discovery Discovery Orders Costs Orders Constructive Trust +1 more

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Parties

Jane Maree Murrell

Intending Plaintiff

Geoffrey Mirkin

Intended Defendant (trustee)

William Elliott Hamilton (as trustee of the W E Hamilton Family Trust)

Intended Defendant (trustee)

Procedural Posture

Civil — Discovery and Trust/property Dispute / Costs Determination Following Pre Commencement Discovery and Filing of Substantive Proceeding

Legal Issues

  1. 1 Whether the intending plaintiff should pay part or all of the intended defendants' costs of complying with a pre-commencement discovery order under r 8.22(3) High Court Rules
  2. 2 How to apportion the defendants' claimed fees between discovery-compliance work and other non-ordered work
  3. 3 Whether costs should be ordered immediately or reserved until substantive proceedings outcome

Ratio Decidendi

Applying the discretion in r 8.22(3) and relevant authorities, the Court assessed the invoices, found the discovery order related only in part to materials that will be used in the substantive Devon Street claim, apportioned the solicitor's invoice so that 30% related strictly to discovery for assets not relevant to the substantive proceeding, and concluded it was just to order the intending plaintiff to pay $2,800 on account of the intended defendants' costs of complying with the discovery order; accountant's fees were not ordered.

Court Disposition

Intending plaintiff ordered to pay part of the intended defendants' costs of complying with the discovery order

Orders

  • Intending plaintiff to pay intended defendants $2,800 on account of costs incurred in relation to the application for and compliance with the discovery order (pursuant to r 8.22(3))
  • Order made without prejudice to intended defendants' right to seek further costs in the substantive proceeding and without prejudice to plaintiff's right to seek recovery of sums if successful