17 Dec 2021
The statutory demand was unsustainable because it sought unliquidated damages; costs follow the event and an uplift of 50% on 2B scale costs was warranted due to the respondent's lack of merit and the director's role as directing mind, therefore costs of $10,755 plus disbursements $639.57 were awarded jointly against the company and its director.
4 Jun 2021
The Court of Appeal held indemnity costs were not justified because Trends had an arguable contractual claim based on the Funding Agreement confidentiality clause (cl 8) meaning the overall case could not be characterised as hopeless from conception; however Trends pursued aspects of the case that were hopeless (notably proving the entirety of claimed Eligible R&D expenditure) warranting an uplift to standard scale costs of 50 per cent; the High Court's non-party orders against TheCircle and Mr Johnson were upheld as properly made given control and funding for their own benefit; disbursements…
26 Mar 2021
Although the non‑party costs order involved a natural justice breach, the Court of Appeal dismissed the appeal because the High Court did not err in concluding it would not exercise its residual discretion to grant a retrospective annulment under s 309(1)(a): appellant was insolvent at adjudication, delayed eight years in applying, had a previous bankruptcy, creditors had been compromised under the bankruptcy (weakening the force of subsequent payments), and alternative statutory remedies existed; those factors collectively outweighed the countervailing considerations for retrospective annulm…
10 Jul 2020
Leave under s 248(1)(c) was not required to fix costs; Trends' counterclaim was hopeless and maintained despite manifest lack of entitlement and inadequate contemporaneous records, and there was conduct justifying indemnity costs; therefore indemnity costs were awarded to Callaghan against Trends; further, David Johnson and TheCircle.co.nz Ltd promoted, funded and controlled the litigation for their own financial benefit and are jointly and severally liable for the costs and disbursements. Costs fixed at $1,020,445.02 and recoverable disbursements fixed at $303,823.66; less $50,000 security p…
13 May 2020
Court ordered plaintiffs to file an affidavit within 15 working days identifying each person, company, trust or entity that contributed to funding and providing full particulars of the relationship between plaintiffs and each funder and any oral agreements or undertakings as to terms of funding; refused defendant's broader requests for production of deceased donor's will, trust deeds/resolutions and declined to order solicitors/counsel to produce email metadata due to limited probative value, proportionality concerns and potential privilege burdens; awarded defendant costs of the application…
12 Nov 2018
The Court of Appeal held that a non-party director can be ordered to pay indemnity costs where the director, as sole controller, caused litigation to be commenced and continued opportunistically and improperly by taking advantage of prior restructuring; however the quantum of indemnity costs must be judicially assessed as 'reasonably incurred' with proper analysis and justification by the trial court, and where the trial judge failed to adequately assess reasonableness the matter must be remitted to the High Court for reassessment (potentially by an Associate Judge). The Court also held that…
24 Mar 2015
The Court refused to award indemnity costs merely because the plaintiff was funded; indemnity costs not justified absent misconduct meeting r14.6(4). Non‑party funders who contractually accepted adverse costs exposure (JAFL) or acknowledged liability and obtained adverse costs insurance (HLIF) were ordered jointly and severally liable for costs subject to contractual limits (HLIF capped at NZD 5,000,000 and excluded modest pre‑July 2011 components) and their liability to lie in Court for 56 days. The Court applied the Holdfast methodology but allowed aggregation of steps in protracted complex…
8 May 2007
The judge found on the balance of probabilities that Patrick Antony Darby controlled and effectively funded the insolvent plaintiff companies, that security for costs had expired leaving no practical recovery against the companies, that causation linked Darby's conduct to the costs incurred, that the Court had jurisdiction to order costs against a non-party in these circumstances, and that in the exercise of judicial discretion it was just to order Darby personally to pay the costs awarded against Wiseline and Spaceways.