Houghton v Saunders HC Christchurch CIV-2008-409-000348 [2011] NZHC 1589 (4 August 2011)

Last Updated: 21 November 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CIV-2008-409-000348}

BETWEEN ERIC MESERVE HOUGHTON Plaintiff

AND TIMOTHY ERNEST CORBETT SAUNDERS

SAMUEL JOHN MAGILL JOHN MICHAEL FEENEY

CRAIG EDGEWORTH HORROCKS PETER DAVID HUNTER

PETER THOMAS JOAN WITHERS First Defendants

AND CREDIT SUISSE PRIVATE EQUITY INC (FORMERLY CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY INC)

Second Defendant

AND CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP Third Defendant

AND FIRST NEW ZEALAND CAPITAL Fourth Defendant

Judgment: 4 August 2011

JUDGMENT OF HON JUSTICE FRENCH

_{as to Costs}

[1] On 8 June 2011 I delivered a judgment dealing with a set of three interrelated interlocutory applications, namely:

1. The plaintiff’s application to lift an interim stay of the proceeding.
   

HOUGHTON V SAUNDERS HC CHCH CIV-2008-409-000348 4 August 2011

ii) Various applications by the defendants to strike out certain parts of the amended statement of claim.

iii) The defendants’ application for security of costs.

[2] I granted the application to lift the stay, awarded security for costs, granted some of the strike out applications and dismissed or deferred others.

[3] As regards costs, I expressed the provisional view that because there had been mixed fortunes costs should lie where they fell. However, if any party wished to apply for costs, they were given the right to file an application.

[4] Since then, the plaintiff has filed an application seeking costs in relation to the application to lift the interim stay, on the grounds that the plaintiff was wholly successful in relation to that application.

[5] I am not, however, persuaded to depart from my provisional view, for the following reasons:

i) As Mr Cooper points out, the stay application was in substance the review of the representative and funding arrangements required by the Court of Appeal anyway. The matters only came before the Court in the procedural form of a stay application because breaches of earlier directions had lead to the imposition of an interim stay.

ii) It is artificial to isolate out the stay application when there were issues common to all three applications, when the plaintiff’s success in “defeating” some of the strike out applications was achieved by significant re-pleadings and when it was a condition of lifting the stay that the plaintiff pay security for costs.

iii) Having regard to the overall outcome (including the defendants’ application to cross-examine Mr Gavigan), it is a situation of mixed fortunes.

[6] I accordingly confirm that costs are to lie where they fall.

[7] There will also be no order for costs arising out of this costs application.

Solicitors:

Wilson McKay, Auckland

(Counsel: A J Forbes QC, Christchurch; J Eichelbaum, Auckland) Bell Gully, Auckland

Clendons, Auckland

Russell McVeagh, Wellington

Jones Fee, Auckland

(Counsel: D McLellan, Auckland) McElroys, Auckland