Gillespie v Guest [2015] NZHC 659 (2 April 2015)

Last Updated: 29 April 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-001629 [2015] NZHC 659

BETWEEN	BRUCE JAMES GILLESPIE, PRUDENCE JULIET GILLESPIE, CHRISTOPHER JAMES GILLESPIE, NICHOLAS JOHN GILLESPIE AND JONATHAN PAUL GILLESPIE Plaintiffs
AND	ANDREW DEXTER GUEST First Defendant RSM PRINCE & PARTNERS First Third Party GRAEME HAMILTON SINCLAIR Second Third Party

Hearing:	On the papers
Judgment:	2 April 2015

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 2 April 2015 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

GILLESPIE v GUEST & OR [2015] NZHC 659 [2 April 2015]

[1] In my substantive judgment in this matter I dismissed Mr Guest’s claim for contribution against Mr Sinclair.¹ Mr Guest had settled a claim brought against him for breach of fiduciary duty, breach of contract, negligence and breach of the Fair Trading Act 1986. Mr Sinclair, however, had been liable only in contract as a guarantor and no right of contribution arose under either s 17(1)(c) of the Law Reform Act 1936 or in equity.

[2] Mr Sinclair was unrepresented at the hearing so no issue as to costs arose in relation to the hearing. He subsequently sought costs on the basis that he had been represented earlier in the proceedings; from the time he was served in July 2011 he retained a solicitor, Mr Soper, and only dispensed with Mr Soper’s services in June

2014 because he could no longer afford the fees. He has provided a copy of a letter written by Mr Soper to Mr Guest in August 2013 which pointed out the flaws in Mr Guest’s claim and a copy of Mr Soper’s invoice for the representation.

[3] Mr Soper’s letter of 15 August 2013 accurately identified a number of the difficulties that Mr Guest would face in advancing his claim as it was then formulated and invited him to discontinue, in which case no costs would be sought. It indicated that if the matter proceeded then indemnity costs would be sought. Mr Soper’s invoices for the period 29 February 2012 – 30 April 2014 together with Mr Sinclair’s airfares to Auckland for the issues conference and the trial, total

$33,491.22.

[4] Mr Guest strongly resists indemnity costs being awarded in this case. Mr Cogswell has provided a memorandum in which he has submitted that Mr Guest’s claim for contribution was arguable, relying on the fact that the complexity of the Altimarloch decision meant that it could not be viewed as precluding Mr Guest’s claim. He further points out that the completely inappropriate causes of action originally pleaded by Mr Guest were withdrawn following Mr Soper’s letter so that the issues on which the matter proceeded to trial were

_reasonable.

¹ Gillespie v Guest [2014] NZHC 2368.

[5] Indemnity costs under r 14.6 are available as a response to bad behaviour in the conduct of the claim. Having considered Mr Cogswell’s memorandum I accept his submission that the circumstances are not such as to warrant indemnity costs. Mr Sinclair is, however, entitled to costs on a 2B basis for the period during which Mr Soper acted, together with reasonable disbursements (including his airfares). I

_{leave the calculation of those costs to the parties.}

P Courtney J