FULLARTON v AWN HOLDINGS LIMITED [2021] NZHC 1873

FULLARTON v AWN HOLDINGS LIMITED [2021] NZHC 1873

The Court fixed costs now against the first plaintiff for the unsuccessful summary judgment application because the application was an unsuitable and novel vehicle for complex securities/promoter liability issues, relied substantially on inadmissible (double) hearsay evidence, and conferred no procedural benefit; costs assessed by reference to Category 3 with specific adjustments, and costs for the r 4.24 representative proceedings application awarded to plaintiffs on Category 3B.

Citation
[2021] NZHC 1873
Parties
First Plaintiff: FRANCES JANE FULLARTON; Second Plaintiff: NEWTON PONTES; First Defendant: AWN HOLDINGS LIMITED; Second Defendant: ROBERT CHARLES FACER; Third Defendant: CHRISTOPHER MORTON KELLY; Fourth Defendant: CRAIG DOUGLAS McINTOSH; Fifth Defendant: JAMES ALEXANDER CHARLES TURNER; Sixth Defendant: RUSSELL JOHN WOODARD; Seventh Defendant: GLEN WILLIAM DOBBIE; Eighth Defendant: NICO ANDREW MARX; Ninth Defendant: KEVIN TSER FAH CHINN; Tenth Defendant: DAVID MALCOM KEEFE; Eleventh Defendant: JOHN COLINTON MOORE
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 July 2021
Procedural Posture
Representative Proceedings Under Securities Act 1978 and Related Statutes / Summary Judgment on Liability Dismissed; Interlocutory Costs Determination and R 4.24 Representative Proceedings Order
Outcome
Summary judgment application on liability dismissed; costs of that application fixed against the first plaintiff in favour of defendants with awards on Category 3C and specified reductions and adjustments; r 4.24 representative proceedings application granted and costs awarded to plaintiffs on Category 3B;...
Legal Topics
Summary Judgment, Representative Proceedings (r 4.24), Promoter Liability, Misleading Statements, Costs Allocation, Hearsay Admissibility, Due Diligence Defence, S 63 Relief
Securities Law Fair Trading Law Civil Procedure Corporate Law Evidence Law Summary Judgment Representative Proceedings (r 4.24) Promoter Liability +5 more

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Parties

FRANCES JANE FULLARTON

First Plaintiff

NEWTON PONTES

Second Plaintiff

AWN HOLDINGS LIMITED

First Defendant

ROBERT CHARLES FACER

Second Defendant

CHRISTOPHER MORTON KELLY

Third Defendant

CRAIG DOUGLAS McINTOSH

Fourth Defendant

JAMES ALEXANDER CHARLES TURNER

Fifth Defendant

RUSSELL JOHN WOODARD

Sixth Defendant

GLEN WILLIAM DOBBIE

Seventh Defendant

NICO ANDREW MARX

Eighth Defendant

KEVIN TSER FAH CHINN

Ninth Defendant

DAVID MALCOM KEEFE

Tenth Defendant

JOHN COLINTON MOORE

Eleventh Defendant

Procedural Posture

Representative Proceedings Under Securities Act 1978 and Related Statutes / Summary Judgment on Liability Dismissed; Interlocutory Costs Determination and R 4.24 Representative Proceedings Order

Legal Issues

  1. 1 Whether summary judgment on liability was appropriate in complex securities/promoter liability claims
  2. 2 Admissibility and weight of hearsay and double hearsay evidence relied on by applicant
  3. 3 Whether costs of unsuccessful summary judgment application should be fixed now or reserved

Ratio Decidendi

The Court fixed costs now against the first plaintiff for the unsuccessful summary judgment application because the application was an unsuitable and novel vehicle for complex securities/promoter liability issues, relied substantially on inadmissible (double) hearsay evidence, and conferred no procedural benefit; costs assessed by reference to Category 3 with specific adjustments, and costs for the r 4.24 representative proceedings application awarded to plaintiffs on Category 3B.

Court Disposition

Summary judgment application on liability dismissed; costs of that application fixed against the first plaintiff in favour of defendants with awards on Category 3C and specified reductions and adjustments; r 4.24 representative proceedings application granted and costs awarded to plaintiffs on Category 3B;...

Orders

  • Costs of the first plaintiff's summary judgment application are fixed against the first plaintiff and awarded to the defendants assessed by reference to Category 3C with adjustments as set out in the judgment
  • Costs of the summary judgment application awarded separately to the second to sixth defendants with reductions (exclude case management costs of $3,883.00; one day allowed for admissibility objection; hearing time adjusted to 2.25 days for principal counsel; other step allowances adjusted)