TRUSTEES EXECUTORS LTD v FUND MANAGERS CANTERBURY LTD & ORS (COSTS) [2015] NZHC 41

TRUSTEES EXECUTORS LTD v FUND MANAGERS CANTERBURY LTD & ORS (COSTS) [2015] NZHC 41

The third party notice against Mr Mody was struck out as an abuse of process because, on the pleadings and applying the doctrine of identification, Mr Mody's liability as an employee was co-extensive with Trustees Executors Ltd such that joinder was unnecessary; costs were awarded to Mr Mody and TEL on a 2B scale plus disbursements, but an uplift and second counsel costs were denied because Deloitte's contested legal argument was not so unmeritorious as to warrant increased costs.

Citation
[2015] NZHC 41
Parties
Plaintiff: Trustees Executors Ltd; First Defendant: Fund Managers Canterbury Ltd; Second Defendant: Deloitte; Third Defendant: Deloitte Ltd; Fourth Defendant: Graeme Main; Fifth Defendants: Alexander Donald McBeth; Paul Ernest McEwan; Alan William Prescott; Geoffrey Read Thomas; Andrew Hendra Young; Oliver Roderick Matson; First Third Party: Yogesh Mody; Second Third Party: AIG New Zealand Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 January 2015
Procedural Posture
Civil Costs Application Following Interlocutory Strike Out of Third Party Notice / Interlocutory Costs Determination After Strike Out Hearing
Outcome
Third party notice against Yogesh Mody struck out as abuse of process; costs awarded to Mr Mody and Trustees Executors Ltd on a 2B scale plus disbursements; 50% uplift and second counsel appearance costs denied.
Legal Topics
Abuse of Process, Third Party Notice, Contribution, Identification Doctrine, Law Reform Act 1936 S17(1)(c), Costs Uplift (high Court Rules R14.6(3))
Civil Procedure Costs Statutory Contribution Abuse of Process Third Party Notice Contribution Identification Doctrine Law Reform Act 1936 S17(1)(c) +1 more

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Parties

Trustees Executors Ltd

Plaintiff

Fund Managers Canterbury Ltd

First Defendant

Deloitte

Second Defendant

Deloitte Ltd

Third Defendant

Graeme Main

Fourth Defendant

Alexander Donald McBeth; Paul Ernest McEwan; Alan William Prescott; Geoffrey Read Thomas; Andrew Hendra Young; Oliver Roderick Matson

Fifth Defendants

Yogesh Mody

First Third Party

AIG New Zealand Ltd

Second Third Party

Procedural Posture

Civil Costs Application Following Interlocutory Strike Out of Third Party Notice / Interlocutory Costs Determination After Strike Out Hearing

Legal Issues

  1. 1 Whether liability of Deloitte and Mr Mody arose "in respect of the same damage" under s 17(1)(c) Law Reform Act 1936
  2. 2 Whether Deloitte's third party claim against Mr Mody was an abuse of process because his liability was co-extensive with Trustees Executors Ltd
  3. 3 Whether an uplift to costs under High Court Rules r 14.6(3)(b) was justified and whether second counsel costs should be allowed

Ratio Decidendi

The third party notice against Mr Mody was struck out as an abuse of process because, on the pleadings and applying the doctrine of identification, Mr Mody's liability as an employee was co-extensive with Trustees Executors Ltd such that joinder was unnecessary; costs were awarded to Mr Mody and TEL on a 2B scale plus disbursements, but an uplift and second counsel costs were denied because Deloitte's contested legal argument was not so unmeritorious as to warrant increased costs.

Court Disposition

Third party notice against Yogesh Mody struck out as abuse of process; costs awarded to Mr Mody and Trustees Executors Ltd on a 2B scale plus disbursements; 50% uplift and second counsel appearance costs denied.

Orders

  • Deloitte to pay Mr Mody costs on a 2B scale plus disbursements as claimed (amounting to $8,792.74) but not to pay appearance costs for second counsel
  • Deloitte to pay Trustees Executors Ltd costs on a 2B scale plus disbursements (no uplift and no allowance for second counsel)