FORBES v TOWNSEND (COSTS) [2023] NZHC 2833

FORBES v TOWNSEND (COSTS) [2023] NZHC 2833

Costs were reserved because the judge concluded the plaintiffs' summary judgment application was not so devoid of merit or so unreasonable as to justify fixing costs now given competing authority, factual complexities and that pre-hearing correspondence warning the plaintiffs did not change the reasonableness assessment.

Citation
[2023] NZHC 2833
Parties
Plaintiffs: Grant David Forbes, Jennifer Lee Forbes and Stephen Lawrence Gallaugher as trustees of Assurer Trust; Defendants: Sarah Caroline Townsend and Frederick Muir Ward as trustees of the Erskine Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 October 2023
Procedural Posture
Contract Dispute — Summary Judgment Application Under Contract and Commercial Law Act 2017 / Costs Application Following Dismissal of Summary Judgment Application
Outcome
Costs reserved in respect of the plaintiffs' summary judgment application
Legal Topics
Summary Judgment, Costs Reservation and Fixing, Misrepresentation, Procedural Propriety
Contract Law Civil Procedure Trusts Law Costs Summary Judgment Costs Reservation and Fixing Misrepresentation Procedural Propriety

Case Brief

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Parties

Grant David Forbes, Jennifer Lee Forbes and Stephen Lawrence Gallaugher as trustees of Assurer Trust

Plaintiffs

Sarah Caroline Townsend and Frederick Muir Ward as trustees of the Erskine Trust

Defendants

Procedural Posture

Contract Dispute — Summary Judgment Application Under Contract and Commercial Law Act 2017 / Costs Application Following Dismissal of Summary Judgment Application

Legal Issues

  1. 1 Whether costs should be reserved or fixed following dismissal of a summary judgment application
  2. 2 Whether the plaintiffs acted unreasonably in pursuing the summary judgment application
  3. 3 Whether prior correspondence warning of inappropriateness justified an adverse costs award

Ratio Decidendi

Costs were reserved because the judge concluded the plaintiffs' summary judgment application was not so devoid of merit or so unreasonable as to justify fixing costs now given competing authority, factual complexities and that pre-hearing correspondence warning the plaintiffs did not change the reasonableness assessment.

Court Disposition

Costs reserved in respect of the plaintiffs' summary judgment application

Orders

  • Costs on the plaintiffs' application for summary judgment are reserved.
  • No costs are awarded to the plaintiffs for filing memoranda in relation to costs.