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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 1999-404-000936
BETWEEN WISELINE CORPORATION LIMITED
First Plaintiff
AND SPACEWAYS HOLDINGS LIMITED
Second Plaintiff
AND R HOCKEY IN HER CAPACITY AS
EXECUTRIX
OF THE ESTATE OF THE
LATE RUSSELL GARLAND HOCKEY
First Defendant
AND R HOCKEY
Second
Defendant
Hearing: 4 April 2007
Appearances: P A Darby in person
J Toebes for the defendants
Judgment:
8 May 2007 at 3pm
JUDGMENT OF STEVENS J
This judgment was delivered by me on
Tuesday, 8 May 2007 at 3pm
pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
J Toebes, Buddle Findlay, PO Box 2694, Wellington
Copy to:
P A Darby, PO Box 2531,
Auckland
WISELINE CORPORATION LTD AND ANOR V R HOCKEY IN HER CAPACITY AS EXECUTRIX OF
THE ESTATE OF THE LATE RUSSELL GARLAND HOCKEY
AND ANOR HC AK CIV 1999-404-000936
8 May 2007
Introduction
[1] This judgment deals with the question of costs incurred by
Mrs Rita Hockey
as a result of being sued by the plaintiffs in this litigation as both first and second
defendants. This has been
lengthy and convoluted litigation, commenced as far back
as 1999 by Wiseline Corporation Ltd (Wiseline) against Mrs Hockey's late
husband,
Mr Russell Hockey. The substantive proceedings came to an end in February 2006
when Wiseline accepted that the claims against
the estate of Mr Hockey had been
stayed by operation of law and the claim against Mrs Hockey by Spaceways
Holdings Ltd (Spaceways),
which had joined the litigation as a second plaintiff in
February 2002, was discontinued.
[2] A minute of Venning J dated 22
February 2006 confirmed that such an end to
the litigation would have "costs consequences". Directions were given regarding the
filing
and service of costs memoranda by the parties. These were to deal not only
with the question of costs, but also with the issue of
security for costs provided by
both Wiseline and Spaceways. The costs memoranda were filed, but the file appears
to have been misplaced
within the Court Registry. Hence, the costs application by
Mrs Hockey was not dealt with timeously.
[3] The costs question came
before Venning J again on 29 November 2006. He
noted that Mrs Hockey was seeking costs personally against Mr Patrick Antony
Darby
(Mr Darby) who had been described in the second amended statement of
claim as "the sole director of Wiseline and Spaceways". The
same pleading alleged
that the shares in these companies are "held for both Mr Darby and his wife, Norah
Ann Darby". Venning J directed
that if the defendants wished to maintain the
applicat ion for costs against Mr Darby personally then he ought to have the
opportunit
y to be heard orally.
[4] Subsequently, counsel for the defendants confirmed that the application for
costs against Mr Darby
personally was to be pursued. The matter came before me
and all aspects of costs were argued, including the claim against Mr Darby
personally, in the course of a half day fixture. Despite Venning J having suggested
that Mr Darby might well wish to consider representation
at such a hearing,
Mr Darby appeared in person to represent himself. He had previously, on 11 April
and 1 May 2006, filed written
submissions as to costs. He filed a further written
submissio n at the hearing and presented extensive oral submissions.
[5]
The chronology of events surrounding the litigation will be outlined later.
But Mr Darby and Mr Toebes, counsel for Mrs Hockey, agree that there have been in
excess of twenty hearings requiring extensive judicial time. Nicholson J was the
assigned Judge and has presided over what he described
as "a tangled web of
proceedings": see the judgment of Nicholson J in Wiseline Corporation Limited v
Hockey (2001) 16 PRNZ 29 at [5]. Paragraphs [6] to [15] of that judgment describe
the complex chronology of the case to that point.
[6] To complete this
introduction, the broad flavour and circumstances are
convenient ly captured in the following passage from a later judgment of Nicholson
J
in relation to another application by Mrs Hockey to remove a caveat placed on her
property, on this occasion lodged by Spaceways:
see Hockey v Spaceways Holdings
Limited HC AK CIV 2003-404-4420 18 August 2003 at [4]-[5]:
...[the circumstances] are basically
that for some years now Mr Darby,
acting through shell companies which he controls and which are basically
insolvent,
has pursued a claim against the estate of the late Mr Hockey and
his widow, Mrs Hockey, seeking substantial damages for alleged
breach of
contract and failure to account for money.
The history of the labyrinth of litigation which has ensued is
explained in the
ma ny judgments which I have given, starting with my judgment of
7 December 2001. Many of the judgments
have been the subject of appeal.
Most of the appeals have been struck out. There is uncertainty about which
of the
appeals are still extant. Despite directions of the Court that
memoranda be filed to clarify this, that has not been done.
The current
situation is recorded in my minute of 7 August 2003. That related to a
confer ence at which Mr Swan, barrister,
appeared for Spaceways. However,
he was in difficulty because he had just recently been instructed and was not
fully
aware of the convoluted and complex background to the litigation and
its present position.
Factual background
[7] In
brief summary, Mrs Hockey is the executrix of the estate of her late
husband. Mr Hockey had met Mr Darby when they were both working
for
Prudential Assurance Company New Zealand Ltd. It seems that they decided to set
up some form of joint venture in the field
of insurance succession planning.
Wiseline was the corporate entity established for the investment of the savings of
Mr Darby and
his wife, and was the means by which Mr Darby invested in the joint
venture. Similarly, the Pinnacle companies were set up at the
time the joint venture
was established, and were used for the investment of the savings of Mr Hockey and
his wife. The funds advanced
by Wiseline resulted in Mr Darby being given a 40%
shareho lding in each of the Pinnacle companies and appointed a director of each.
[8] Wiseline alleged that Mr Hockey removed approximately $150,000 from the
Pinnacle companies for his own use without due authority.
It was alleged that
Mr Hockey later sought to transfer the assets and the business of the Pinnacle
companies to himself personally,
registered debentures in favour of himself over the
companies and sought to have Mr Darby removed as director of each of the
companies.
[9] Not long after proceedings commenced, in May 2000, Mr Hockey died. His
will appointed Mrs Hockey as executrix and she was
bequeathed all of his estate.
Caveats were lodged by Wiseline over land on the Coromandel peninsula allegedly
bought with joint venture
funds and against the grant of probate. However, probate
was eventually granted and the Court allowed the transfer of the land to
Mrs Hockey
as sole survivor and eventually the sale and distribution of the proceeds. For all
practical purposes, Mr Hockey's estate
was bankrupt. This was recognised by the
parties and in November 2002 there was a Court order made by consent that the
estate was
insolvent and appointing the Official Assignee as Administrator.
[10] The litigation initiated by Wiseline against the late Mr
Hockey has been
through many iterations. Mrs Hockey was joined to the proceedings as a second
defendant in October 2001. Spaceways
became a second plaintiff in the litigation in
February 2002. The first amended statement of claim alleged that Spaceways was a
"corporate
entity" and that the "beneficial shareholders" were Mr Darby and his
wife. There is a further pleading that Spaceways had contracted Mr Darby
as a
"superannuat ion consultant" and that "Mr Darby's earnings through [Spaceways]
were on average $20,000 per month".
[11]
A second amended statement of claim was filed in May 2004 featuring
Wiseline as the first plaintiff and Spaceways as the second plaintiff.
In terms of
Mr Darby's roles in Wiseline and Spaceways, the second amended statement of
claim pleaded in paragraph 3 that:
Patrick Antony Darby is the sole director of Wiseline and Spaceways and the
shares of both companies are held for both Mr
Darby and his wife, Norah
Ann Darby.
[12] Despite the appointment of the Official Assignee as Administrator of the
estate
in 2002, Mrs Hockey was named in the second amended statement of claim as
first defendant in her capacity as executrix of the estate
and in her personal capacity
as second defendant.
[13] This particular pleading alleged three causes of action by Wiseline against
Mrs Hockey as first defendant: for misrepresentation, breach of contract and breach
of fiduciary duty. For these causes of action,
the sum of $170,509 plus interest and
costs was claimed against Mrs Hockey. Spaceways pleaded a separate cause of
action against
Mrs Hockey as first defendant for alleged breaches of the Fair Trading
Act 1986. Damages of $615,468 plus interest and costs were
claimed. There was
also a further cause of action brought by Wiseline against Mrs Hockey as second
defendant for money had and received.
The amount claimed was $50,000 plus
interest and costs.
[14] Mrs Hockey, as both first and second defendant, remained at risk
arising
fro m this second amended statement of claim to the eve of the trial, scheduled to
start in late February 2006. Until the
notice of discontinuance was filed, finally
bringing this saga to an end, it would have been necessary for her counsel to prepare
for trial, particularly in view of the financial exposure (to say nothing of the personal
anguish and stress) which she was then
facing.
[15] The factual background would not be complete without reference to the many
caveats that were filed by Wiseline against
the Coromandel property owned by
Mrs Hockey and Mr Hockey's estate. Spaceways also filed caveats against that
property. In addition,
a caveat was lodged against the grant of probate in the estate
of the late Mr Hockey.
[16] The above is but a brief overview
of the various proceedings, appeals and
reviews that have arisen in this litigation. A fuller picture emerges from schedule 1
which
is a hindsight summary of the position in relation to Court proceedings, as
best it can be reconstructed from what is now a voluminous
file.
Security for costs
[17] An important stage in the litigation was reached in March 2002. Nicholson J
considered various
matters including the joinder of Spaceways as a second plaintiff
and an application for security for costs by the defendants, namely,
Mrs Hockey in
her twin capacities as first and second defendant. In a judgment on 20 March 2002
(Wiseline Corporation Ltd v Hockey
& Anor HC AK M143-SD99 20 March 2002),
leave was granted for the adding of Spaceways as a plaintiff in the original
proceeding. Nicholson
J then dealt with the issue of security for costs stating the
background at [15] as follows:
On 7 February 2002 the defendants
applied for an order that Wiseline give
security for costs. It did so [sic] on the basis that Wiseline had not paid costs
of $14,581.86 as ordered by the Court on 5 November 2001. On
5 December 2001 Wiseline had applied for review of that
costs order and for
a stay of execution of the costs judgment. In my judgment of 20 December
2001 I dismissed the application
for review and stay. That day Mrs Hockey
issued a statutory demand. On 14 January 2002 Wiseline applied to set aside
the statutory demand. On 30 January 2002 Wiseline withdrew the
application to set aside the statutory demand. Because of the non-payment
the
defendants alleged that there was reason to believe that Wiseline would
be unable to pay their costs if Wiseline was unsuccessful
in its proceedings.
[18] In view of the joinder of Spaceways, the defendants also sought an order for
securit y for costs against
both Wiseline and Spaceways. Mr Darby swore an
affidavit as to the assets and liabilities of Wiseline and Spaceways.
He deposed that
Wiseline's only asset, apart from a fax machine valued at $221, was a debt owed by
the defendants claimed in the
original proceedings. Wiseline had no income and
liabilit ies of $400,072. Mr Darby stated that he and his wife were the major
creditors. So far as Spaceways was concerned, the only assets were a debt alleged to
be owed by the defendants of $527,644 which
was the subject of the original
proceedings. Spaceways had no income and no liabilities.
[19] On the basis of this evidence and
the other material before the Court,
Nicho lson J concluded at [18]-[20]
It is clear that without the debts alleged to be
owed to them by the
defendants which are the subject of the original proceedings, Spaceways and
Wiseline are insolvent.
Mr Darby deposed that that position existed because
of the actions of Rita and Russell Hockey in respect of which relief is
sought
from the Court.
The reality of the situation is that if the claims of Wiseline and/or Spaceways
fail
then Mr Darby will be under no personal liability in respect of the
defendants' costs and therefore the only financial disincentive
for him to
continue the proceedings is the Court fees and the costs which he may have
to pay to counsel acting for
his companies. On the other hand, if either or
both of the claims of Wiseline and Spaceways succeed then he will reap the
benefit. As stated earlier, I have formed the view that Mr Darby elected to
conduct his financial affairs behind the
shield of limited liability companies.
In these proceedings it would be unjust for him to use that shield to give him
an unfair advantage over the defendants by maintaining, in effect, a heads I
win, tails you loose [sic], position. Therefore
if he wishes to pursue the
cha nce of his companies succeeding against the defendants he must finance
and take the
risk of a contrary costs order in the event of either or both his
companies claims failing.
From the considerable
material provided to the Court in the affidavits in
interlocutory matters I have formed the view that the Wiseline claim is
of
doubtful merit, particular because there was a settlement recorded in an
executed deed but which Mr Darby alleges
that Mr Hockey failed to honour.
The claim by Spaceways seems to have even less merit bearing in mind that
it has just
recently surfaced. One would have thought that if there was a
sound basis for such a claim it would have been included in
proceedings at
an early stage and would have been the subject of negotiation and agreement
in the settlement reached
between Mr Hockey and Mr Darby in October
1997. Mr Darby cannot expect to press ahead with the claims of his
companies
with the other party costs risk being borne solely by the
defendants. I accordingly consider that it is just and appropriate
that as the
price for continuing with their claims each of the insolvent plaintiffs provide
security for costs.
[20]
On this basis, security for costs was ordered against both Wiseline and
Spaceways in the sum of $17,000 each. Such security was
to be provided either by:
a) Wiseline and Spaceways each paying $17,000 into Court; or
b) By giving security
for those sums to the satisfaction of the Registrar.
[21] In the event, the second option was taken up. Two bonds were given by the
BNZ on behalf of Wiseline and Spaceways. But
the bonds each had an expiry date
of 1 February 2007. It is accepted by Mr Toebes, on behalf of Mrs Hockey, that the
bonds have
expired and cannot be used as a source of recovery of any of her costs.
Mrs Hockey's claims for costs
[22] At the costs hearing,
counsel for Mrs Hockey sought the following orders for
costs:
a) Against the first plaintiff, Wiseline, in the sum
of $65,526.86;
b) Against the second plaintiff, Spaceways, in the sum of $16,050.00;
c) Against Patrick
Antony Darby personally, for both the above costs
orders against Wiseline and Spaceways respectively.
[23]
The costs involved in this application were in two categories costs orders
already made and costs orders sought. In the case of
the sum of $65,526.86 sought
against Wiseline, the breakdown was (a) costs orders already made ($41,146.86) and
(b) cost orders sought
($23,380).
[24] The costs sought by Mrs Hockey against Spaceways total $16,050, made up
of (a) costs orders already made ($6,755)
and (b) share of costs orders sought
($9,295). The costs orders already made are as recorded in schedule 2.
[25] The further
costs sought against Wiseline and Spaceways total $23,380 and
$9,295 respectively. These are conveniently summarised in schedule
3. Mr Darby
sensibly acknowledged at the hearing that he did not dispute the figures as calculated
by the defendants' counsel and
as set out in schedule 2. At the hearing, I canvassed
with counsel and Mr Darby the difficulty for a Judge coming into such a matter
solely for the purposes of dealing with costs, and without having been involved in
any previous part of the litigation. Partly to
reflect this difficulty, and partly to
acknowledge the discretionary nature of costs awards generally, I suggested that a
fair rounded
figure for the costs sought against Wiseline could be fixed at $20,000
and against Spaceways at $8,000. Counsel for Mrs Hockey
and Mr Darby accepted
that such an approach was appropriate.
[26] Mr Darby was quick to preserve his position on other arguments
which he
raised in opposing the making of any costs orders against Wiseline, Spaceways and,
in particular, himself. But I note for
completeness that he withdrew any contention
based on alleged "double dipping": see paragraph 7 of his written submissions
presented
at the hearing. He did not have a schedule to present to the Court, but
agreed that the point could not be pursued.
[27] The
major focus of Mr Darby's concern at the hearing was to deflect any
costs award against himself personally. He presented other submissions
which are
discussed below. But he acknowledged that neither Wiseline nor Spaceways had
any assets or income. Neither company could
meet a judgment for costs. This put a
special focus on the argument on behalf of Mrs Hockey that Mr Darby should be
held personally
responsible for the costs of both Wiseline and Spaceways, even
though he was not a party to the litigation.
Costs principles
[28] Rule 46 of the High Court Rules (the Rules) gives the Court a general
discretion regarding costs. This discretion is not as
overarching as it appears from
the provisions of r 46: see Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606
(CA). At [24], the Court stated that:
...the discretion exists to enable the unexpected and the unforeseen to be
fairly
accommodated. It is not a case of r 46 having an exclusionary primacy
over r 47 (or any other rules): the rules are complementary,
and designed to
produce an effective whole.
[29] When exercising the Court's costs discretion, the principles established
under
r 47 must be borne in mind:
Principles applying to determination of costs
The following general principles
apply to the determination of costs:
(a) The party who fails with respect to a proceeding or an interlocutory
application should pay costs to the party who succeeds:
(b) An award of costs should reflect the complexity and significance
of
the proceeding:
(c) Costs should be assessed by applying the appropriate daily recovery
rate
to the time considered reasonable for each step reasonably
requir ed in relation to the proceeding or interlocutory
application:
(d) An appropriate daily recovery rate should normally be two-thirds of
the daily rate considered
reasonable in relation to the proceeding or
interlocutory application:
(e) What is an appropriate daily recovery
rate and what is a reasonable
time should not depend on the skill or experience of the actual
solicitor
or counsel involved or on the time actually spent by the
actual solicitor or counsel involved or on the costs actually
incurred
by the party claiming costs:
(f) An award of costs should not exceed the costs incurred by the party
claiming costs:
(g) So far as possible the determination of costs should be predictable and
expeditious.
[30] The uncontroversial starting point is that the scale of costs represents a
legislat ive indication of a reasonable contribution
towards the costs properly and
reasonably incurred by a successful party. In Mansfield Drycleaners v Quinny's
Drycleaning (Dentice
Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA), the
Court of Appeal said at [27]:
While r 46 preserves the Court's overriding discretion, there is a strong
implication that a Court is to apply the regime in the absence of some reason
to the contrary: Body Corporate 97010 v Auckland
City Council (2001)
15 PRNZ 372 (CA).
[31] While normally it is desirable practice for the assigned Judge to hear and
decide any argument on costs, r 48F provides:
Costs may be determined by different Judge or Associate Judge
Costs may be determined by a Judge or Associate Judge
other than the Judge
or Associate Judge who heard the matter to which the costs relate, if the
Judge or Associate Judge
who heard the matter to which the costs relate is
not available conveniently to make the determination.
[32] In terms of
the Court's jurisdiction on costs, reference is also made to s 51G
of the Judicature Act 1908 which provides:
Jurisdiction
of Court to award costs in all cases
(1) Where any Act confers jurisdiction on the High Court or a Judge
ther
eof in regard to any civil proceedings or any criminal proceedings
or any appeal, without expressly conferring jurisdiction
to award or
otherwise deal with the costs of the proceedings or appeal, jurisdiction
to award and deal with
those costs and to make and enforce orders
relating thereto shall be deemed to be also conferred on the Court or
Judge.
(2) Such costs shall be in the discretion of the Court or Judge, and may, if
the Court or Judge thinks
fit, be ordered to be charged upon or paid out
of any fund or estate before the Court.
[33] In Carborundum Abrasives
Ltd v Bank of New Zealand (No 2) [1992]
3 NZLR 757 (HC), Tompkins J rejected the notion that s 51G or r 46 might in some
way limit the jurisdiction to make an award of costs against
a non-party. At
763-764, he said:
On the contrary, it accords with the approach that the Courts should
have full
control over proceedings before it, to hold that in appropriate cases and for
proper reasons the Courts should
be able to order a person who is not a party
to those proceedings to make a payment towards the costs incurred by a
party.
[34] In the same case, Tompkins J observed at 764 that, as a general rule, costs
would not be awarded against a person
who is not a party. On the basis of English
authority, he went on to suggest that an award of costs against a non-party was
"except
ional". In terms of situations where a non-party costs order might be
just ified, Tompkins J stated, at 765:
Wher e proceedings
are initiated by and controlled by a person who, although
not a party to the proceedings, has a direct personal financial
interest in their
result, such as a receiver or manager appointed by a secured creditor, a
substantial unsecured creditor
or a substantial shareholder, it would rarely be
just for such a person pursuing his own interests, to be able to do so with
no
risk to himself should the proceedings fail or be discontinued. That will be
so whether or not the person is acting
improperly or fraudulently.
In many cases a major consideration will be the reason for the non-party
causing a party,
normally but not always an insolvent company, to bring or
defend the proceedings. If the non-party does so for his own financial
benefit, either to gain the fruits of the litigation or to preserve assets in which
the person has an interest, it
may, depending upon the circumstances, be
appropriate to make an order for costs against that person. Relevant factors
will include the financial position of the party through whom the
proceedings are brought or defended and the likelihood
of it being able to
meet any order for costs, the degree of possible benefit to the non-party and
whether, in all
the circumstances, the bringing or defending of the claim
although in the end unsuccessful was a reasonable course to
adopt.
[35] Apart from Carborundum (No 2), there is ample authority to support the
proposit ion that the Court has jurisdiction
to order costs against a non-party and may
in appropriate circumstances do so: see Hamilton v Papakura District Council
[security
for costs] (1997) 11 PRNZ 333 and the judgment of John Hansen J in
Kelmarna Properties Ltd v Scenic Developments Ltd & Ors HC CHCH
CIV 2003-009-001781 1 November
2004.
[36] The fact that there are already in existence several costs orders against
Wiseline and Spaceways, as set out in schedule
3, does not preclude the making of a
non-party costs order against Mr Darby. Mr Toebes helpfully cited the decision of
Harrison J
in Impact Collections Ltd v BNZ HC AK CIV 2003-404-004785,
30 November 2004. On this point, Harrison J concluded at [11]-[12]:
I am satisfied that I have jurisdiction to order Mr Reed to pay additional
costs. In Dymocks [Franchise Systems (NSW)
Pty Ltd v Todd [2005] 1
NZLR 145 (PC)] (paras 16 & 17) the Board apparently endorsed Packing In
Ltd [(formerly known
as Bond Cargo Ltd) v Chilcott (2003) 16 PRNZ 958
(CA)] on the basis that the Court has power to make an order which is truly
supplemental to and did not vary its judgment
because the particular
question of a non-party's liability was not the subject of an earlier
deter mination. Also,
the breadth of R46, leaving all matters relating to the
costs of and incidental to a proceeding at the Court's discretion,
points in the
same direction. The purpose of a discretion is to do justice in a particular
case.
Accordingly,
the existence of a sealed order for costs against Impact is not a
bar to the bank obtaining an order for the same amount against
Mr Reed
personally.
[37] A further aspect concerns the types of situations in which an award against a
non-party might
be made. As noted, Tompkins J in Carborundum (No 2) suggested
that the jurisdiction might be exercised in exceptional cases. This
has been the
traditional approach. However, in Dymocks, the Privy Council stated (at [25](i)):
...exceptional in this context
means no more than outside the ordinary run of
cases where parties pursue or defend claims for their own benefit and at their
own expense. The ultimate question in any such "exceptional" case is
whether in all the circumstances it is just to
make the order. It must be
recognised that this is inevitably to some extent a fact-specific jurisdiction
and that
there will often be a number of different considerations in play,
some militating in favour of an order, some against.
[38]
In terms of when it might be just and proper to make an order for costs
against a non-party, the Privy Council stated (at [25](3)):
Wher e, however, the non-party not merely funds the proceedings but
substantially also controls or at any rate is
to benefit from them, justice will
ordinarily require that, if the proceedings fail, he will pay the successful
party's
costs. The non-party in these cases is not so much facilitating access
to justice by the party funded as himself gaining access
to justice for his own
purposes. He himself is `the real party' to the litigation...
[39] In summary, the Privy Council
stated (at [29]):
...wher e a non-party promotes and funds proceedings by an insolvent
company solely or substantially
for his own financial benefit, he should be
liable for the costs if his claim or defence or appeal fails. As explained in
the cases, however, that is not to say that orders will invariably be made in
such cases, particularly, say, where
the non-party is himself a director or
liquidator who can realistically be regarded as acting rather in the interests of
the company (and more especially its shareholders and creditors) than in his
own interests.
[40] The above passages
from the Privy Council decision in Dymocks were cited
with approval by Harrison J in Impact Collections. On the facts
in that case,
Harrison J concluded that a non-party costs order should be made against Mr Reed at
[24]-[25]:
As its major
shareholder, Mr Reed had a direct financial interest in his
decisions made for the company. They were taken for his ultimate
benefit.
He stood to make a personal gain on all proceedings brought by Impact
including, of course, its appeal to
this Court.
In my judgment, on those facts alone, it would be just to make an order for
costs against Mr Reed personally.
[41] Whilst the Dymocks case involved a non-party who funded the litigation, this
is not a necessary requirement: see the judgment
of John Hansen J in Kelmarna
Properties. It was found there that there was insufficient evidence to say with
certaint y who funded
the litigation. The Judge concluded at [31]-[32]:
Although there is no specific evidence of who funded this litigation, and
in
ma ny cases there will not be such evidence, it is clear in my view that these
parties acted in concert in an attempt to achieve their aim. There was a
direct benefit in it for Messrs Tristram, Whimp and Mr Brixton...
In those circumstances, particularly where it appears
unlikely that the first
defendant or the second third party can meet the award of costs against them,
these parties
who sought to benefit from their actions and, ultimately, from
keeping the litigation alive should face the consequence
in cost. In my view
it is just that they should meet these costs.
[42] Given the clear jurisdiction to make an award of
costs against a non-party, a
key question here is the question of causation. The question is whether, but for Mr
Darby's involvement
in, or control of, the litigation, would the claims against Mrs
Hockey have been pursued by Wiseline and Spaceways? A further and
important
consideration in this case, is whether in all the circumstances I should exercise the
discretion to make an award of costs
against Mr Darby as a non-party.
Causation
[43] On the causation issue, the starting point is that both Wiseline and Spaceways
are undoubtedly substantially controlled by Mr Darby. On the material before
Nicho lson J in July 2002, he was able to
conclude that "Wiseline and Spaceways are
"one-man" companies and that they are in effect insolvent": see Wiseline & Anor v
Hockey
& Anor HC AK CP 243-SD99, M1912-01, CP 474-SW01, P2078-01,
P1976-00, P1465-00 26 July 2002 at [88]. Incidentally, in the same judgment,
Nicho lson J said of Mr Darby at [89] that:
It is clear from the hearing on 10 July 2002 that Mr Darby has access to
considerable legal material. However, I am concerned about his legal and
practical judgment and his proclivity to make
applications and take positions
which lack proper timing and real merit and cause Mrs Hockey considerable
legal expenses
and further delay resolution of entitlement to the Coromandel
property.
[44] In terms of Mr Darby's control of and direct
personal involvement in this
lit igat ion for the perceived benefit of Wiseline and Spaceways, I adopt with respect
the findings
of Nicholson J in paragraphs [18] to [20] inclusive of his judgment of 20
March 2002 cited at [19] above.
[45] Moreover, it is
apparent that all of the proceedings are interrelated. This
point was made by Nicholson J in his minute of 14 December 2001 at [2]:
In my view all the proceedings are interrelated and should be dealt with at
the one hearing. The primary question
is liability of the late Mr Hockey to
Wiseline. There is an ancillary question of whether there is also co-existing
liability by Mrs Hockey personally to Wiseline on the basis alleged in the
amended statement of claim. Decision on caveat
and restraining proceedings
and probate will be greatly influenced by the decision on the merits on the
origina l proceedings.
Counsel agree.
This view was confirmed in a later judgment of 25 June 2002 at [21].
[46] At the hearing, Mr Darby informed the
Court that, contrary to the pleading in
paragraph 3 of the second amended statement of claim quoted at [11] above, he was
not a shareholder
of Spaceways. But no evidence clarifying the position was filed
for the purposes of the costs hearing. Neither had there been
any subsequent
amendment to the second statement of claim, despite the fact that Mr Darby claimed
to have informed his counsel that
the position was not correctly pleaded.
[47] Whatever the current position regarding the shareholding in Spaceways, I
note from
the affidavit filed by Mr Darby as to assets and liabilities of Wiseline and
Spaceways, that he deposed in paragraph 1 that he was
the director of Wiseline and
the manager of the second plaintiff Spaceways. In addition, he clearly stated that he
was "authorised
to swear this affidavit on behalf of both plaintiffs". After setting out
the financial position of both Wiseline and Spaceways, Mr Darby deposed that "my
wife and I are the major
creditors". He added in paragraph 7 that "my wife and I
have no intention to make demand for payment unless and until the companies
receive payment from Rita and Russell Hockey".
[48] Finally, I note the observation of Nicholson J at [4] of in his judgment
of
18 August 2003 that a feature of this litigation was that for some years now
Mr Darby had been "acting through shell companies
which he controls and which
are basically insolvent".
[49] For the purposes of this costs application, I have no difficulty in
finding that
Mr Darby was the controlling influence and guiding hand behind both Wiseline and
Spaceways in respect of the various
steps taken in this labyrinthine litigation. He
was the sole director of Wiseline and had shares in that company. If he was not
director
of Spaceways (contrary to the assertion and the pleadings referred to above),
he was certainly a creditor, according to his own affidavit,
and was the manager of
Spaceways. Hence, I conclude that Mr Darby was plainly in a position to and indeed
did manage, control and
influence the decision-making with respect to the various
steps taken throughout this litigation.
[50] The Court papers are replete
with affidavits filed by Mr Darby in support of
applicat ions by both plaintiffs and in opposition to steps taken by the defendants.
Mr Darby has appeared, or endeavoured to appear, for the companies at various
times. He was the person who filed the submissions
in respect of costs both in
relat ion to Wiseline and Spaceways and himself personally.
[51] Accordingly, in terms of causation,
I conclude that but for Mr Darby's
invo lvement in or control of both companies, this litigation in its various forms
would not have
been conducted in the manner in which it has been. The actions of
Mr Darby have been responsible for many of the attendances and
costs which have
been incurred by Mrs Hockey throughout this litigation.
[52] Moreover, as noted by Nicholson J in the security
for costs judgment,
Mr Darby was the person who stood to benefit if the claims by one or both of
Wiseline and Spaceways had succeeded.
[53] So far as funding the litigation is concerned, Mr Darby asserted in his written
submissio ns boldly that "Mr Darby has not
funded the proceedings". However, he
chose not to put any evidence on this point before the Court. On the material which
is before
the Court as from at least 15 March 2002, the date he swore his affidavit in
relat ion to security for costs, neither Wiseline or
Spaceways had available assets to
fund this litigation. Moreover, there was no source of income and none has been
disclosed by Mr
Darby.
[54] In all the circumstances, I infer that he, as the sole director of Wiseline and
the manager of Spaceways (as well
as a major creditor in respect of both companies),
is on the balance of probabilities the person who has funded this litigation.
He
plainly stood to gain from it. It was conducted in, to put it most mildly, a totally
unsatisfactory way. I consider that Mr Darby
is the person who has effectively
controlled and funded this litigation for his own ends.
Discretion
[55] The question which
I must now consider is whether I should exercise my
discretion to order Mr Darby to pay any costs awarded to Mrs Hockey against
Wiseline
and/or Spaceways. Mr Toebes, for Mrs Hockey, submitted that it was just,
in all the circumstances, that I should so exercise my discretion
to order costs against
Mr Darby as a non-party.
[56] One particular factor which Mr Toebes relied upon was the fact that, through
effluxio n of time and the fact that the Court was not able to hear the costs application
before 1 February 2007, the two BNZ bonds
for security for costs in the sum of
$17,000 each have expired. This has resulted in Mrs Hockey being unable to make a
claim on the
BNZ for the amounts of security provided and in respect of which both
Wiseline and Spaceways were up until 1 February 2007 at risk.
[57] I consider
that the absence of any available security is a relevant factor to be
considered. The fact that there is no available security, for
reasons entirely beyond
Mrs Hockey's control, means that the policy factors behind the original orders for
securit y have not prevailed.
The result is that, unless an order is made against Mr
Darby personally, the very concerns expressed by Nicholson J would have
materialised.
In other words, Mr Darby would be allowed to have conducted his
financial affairs behind a shield of limited liability companies.
He would have been
able to use that shield to secure an unfair advantage over Mrs Hockey by
maintaining, as Nicholson J described
it, a "heads I win, tails you lose" position.
[58] Furthermore, the absence of any security would mean that Mr Darby has in
fact
been able to press ahead with the claims of Wiseline and Spaceways with the
lit igat ion and cost risks being borne solely by Mrs
Hockey. Nicholson J did not
consider that this would have been just and appropriate. Neither do I. Accordingly,
subject to dealing
with the specific arguments raised by Mr Darby, I conclude that it
would be appropriate, in all the circumstances of this case, for
me to exercise the
discretion and make an order for costs against Mr Darby personally as a non-party.
Arguments made by Mr Darby
[59] At the hearing, Mr Darby raised a preliminary point as to the standing of
Mr Toebes to represent Mrs Hockey in her capacity
as the first defendant. Mr Darby
said that the estate was insolvent and hence the Official Assignee as the
Administrator of the estate
was the only person who had the capacity to deal with
this matter. Moreover, the Official Assignee was not involved in the proceeding
and
had filed a memorandum through his counsel saying he would abide any decision of
the Court.
[60] However, the short answer
to this point is that despite the appointment of the
Official Assignee as Administrator of the estate of the late Mr Hockey, Mr Darby
through his companies has continued to pursue Mrs Hockey in her capacity as
executrix in the estate of her late husband: see the
claims in the first four causes of
action brought against Mrs Hockey in her capacity as executrix in the second
amended statement
of claim. Having been sued in that pleading in both a personal
capacit y (as second defendant) and as the first defendant, she has
required counsel to
act for her in both capacities to protect her interests.
[61] Despite taking this preliminary point, Mr Darby
did accept the Court's
suggest ion that this was somewhat technical and that there was a need, in all the
circumstances of this case,
to be more practical in order that there might be an end to
the litigation. To his credit, Mr Darby ultimately accepted that he wished
this matter
to be brought to a just, speedy and inexpensive determination.
[62] A second preliminary point raised by Mr Darby
concerned the fact that in
effect the claims which had been pursued through inter alia the second amended
statement of claim were
in fact stayed by operation of law. In this regard, he referred
to s 32 of the Insolvency Act 1967 staying Court proceedings on adjudication
and
the memorandum which was filed by counsel for the Official Assignee, Mr Dickey.
In that memorandum, Mr Dickey referred to s 32
but otherwise signalled the Official
Assignee's intention to abide the decision of the Court.
[63] The problem for Mr Darby here
is that, despite that memorandum, his legal
advisors chose to issue a second amended statement of claim bringing claims against
Mrs
Hockey in her capacity as executrix. Having not taken any notice of the stay by
operation of law at that stage of the litigation,
it hardly lies in the mouths of the
plaint iffs, or Mr Darby, to do so now. Accordingly, I conclude that there is nothing
in the
second preliminary point raised by Mr Darby.
[64] Mr Darby further submitted in oral argument at the hearing that the
substant ive case of the plaintiffs
did not lack merit. In fact, the case had never been
heard and determined. That is quite correct. But the submission does not assist
Mr
Darby for a number of reasons. First, the application for costs covers a range of
proceedings far wider than the main proceeding.
As the summary in schedule 1
makes clear, the main case and various collateral steps taken by Wiseline,
Spaceways and Mr Darby (such
as the lodging of caveats against Mrs Hockey's
property and against the grant of probate) spawned a raft of related proceedings.
The
plaint iffs and Mr Darby were unsuccessful in most of these, giving rise to inevitable
cost consequences.
[65] Second, so
far as the main proceeding itself is concerned, once the Official
Assignee was appointed Administrator of Mr Hockey's estate, that
should have been
the end of the four causes of action by Wiseline against Mrs Hockey in her capacity
as executrix of her late husband's
estate. But, for reasons that Mr Darby has not
made known to the Court, Wiseline chose to continue that part of the litigation
regardless.
Wiseline only ceased to pursue those causes of action when, on the eve
of trial in February 2006, the Court confirmed that they were
stayed by operation of
law. The Spaceways claim against Mrs Hockey in her personal capacity was later
discontinued, which also gives
rise to a claim for costs.
[66] Third and significantly, there are the findings of Nicholson J about the merits
of the claims
being advanced by Wiseline, Spaceways and Mr Darby. Whilst
Mr Darby may think that the main proceeding was well founded,
this was not the
view of the assigned Judge who considered the claims were of "doubtful merit" (see
[19] of this judgment). Nicholson
J had before him throughout the course of this
lit igat ion a plethora of affidavits (many from Mr Darby) and other material which
would have enabled him to make an informed assessment of the merits of those
claims. He did so. I am not in a position now to gainsay
the judgment of Nicholson
J on this aspect.
[67] Accordingly, any submission by Mr Darby based on the merits of the main
proceeding
can in my view carry no weight, particularly in relation to the discretion
which I am required to exercise at this stage on the question
of costs in the litigation.
Costs claimed by Mrs Hockey against Wiseline
[68] As noted at [23] above, the additional costs
orders sought by Mrs Hockey
amounted to $23,380. The details and breakdown of this amount are set out in
schedule 3. In the exercise
of my discretion, I consider that a fair and just award in
respect of the various applications in respect of which costs were either
reserved or
not fixed, being items (a) to (e) of schedule 3, would be met with a global award of
$20,000.
Mrs Hockey claim for
additional costs against Spaceways
[69] As noted at [24] above, the amount of costs sought is $9,295. The details and
breakdown
of this claim are set out in schedule 3. In the exercise of my discretion, I
consider that a fair and just award in respect of the
costs claimed against Spaceways
as set out in (a) and (b) of schedule 3 would be met by a global award of $8,000.
Costs against
Mr Darby personally
[70] I have already concluded that there is jurisdiction to make such an award,
both in respect of costs
awards already made and costs sought at the hearing. I have
also concluded that the causation point is satisfied. I have carefully
considered all of
the written and oral submissions made by Mr Darby as to why a costs order should
not be made against him personally
in the exercise of my discretion.
[71] However, were I not to make such an order, the inevitable result, given the
absence of
any available amounts of security for costs, would be that Mrs Hockey
would have faced years of litigation, responded to a multitude
of claims and
applicat ions and have been required to take proceedings to remove various caveats
against her properties and the caveat against probate,
all at considerable cost and
personal expense. Such an outcome would, in my judgment, be a travesty of justice.
[72] I conclude
that the case for making an award of costs against Mr Darby
personally as a non-party in all the circumstances of this case, is overwhelming.
I
consider that this is one of those cases where justice requires the Court to exercise its
discretion to make such an order.
Result
and orders
[73] Accordingly, I order that Wiseline is responsible for:
a) The costs orders made against Wiseline
in favour of Mrs Hockey in
the sum of $41,146.86.
b) The sum of $20,000 awarded in [68] above.
[74]
I further order that Spaceways is responsible for:
a) The costs orders made against Spaceways in favour of Mrs Hockey
in
the sum of $6,755.
b) The sum of $8,000 awarded in [69] above.
[75] I further order that Patrick
Antony Darby personally be responsible for
meet ing all of the above mentioned costs of both Wiseline and Spaceways totalling
$75,901.86.
Costs of this hearing
[76] In respect of this half day hearing in respect of costs, Mrs Hockey is entitled
to costs on a 2B
basis. I have calculated that Mrs Hockey's costs of this defended
hearing on such a basis would amount to $800. On this basis, I
consider that a global
award of $800 is justified.
[77] I order that such a costs award shall be met severally by Wiseline, Spaceways
and Mr Darby personally.
_________________________
Stevens J
Schedule 1
Summary of proceedings / applications / reviews / judgments
The following chronology of procedural steps and judicial
events has been recreated from
informat ion available on the file. Every effort has been made to ensure that it is accurate but there
may be material that has been omitted.
Date File No Description
-
9 April 1999 CP 143-SW99 Application by Wiseline seeking to restrain a
shareho lders
meeting of the Pinnacle
companies on 10 April 1999
- Statement of claim against the Mr Hockey and
the Pinnacle companies filed by Wiseline
- Judgment of Williams J making orders
restraining the meeting.
- Application by Wiseline for preservation of
records order and ancillary
orders
13 April 1999 CP 143-SW99 Ex parte application by Wiseline for injunction
restraining concealment
or removal or use of
documents and extending order of 9 April 1999
16 April 1999 CP 143-SW99 Minute of Anderson J granting ex parte
applicat ion by Wiseline for
orders restraining
steps taken in relation to the Mr Hockey's
debentures and that Mr Darby remain as a director
and signatory of the Pinnacle companies
19 April 1999 CP 143-SW99 Minute of Cartwright J adjourning the proceedings
20 April 1999 CP 143-SW99 Minute of Paterson J placing conditions on ex
parte orders regarding
informing the defendants
-
21 April 1999 CP 143-SW99 Notice of proceeding filed by Wiseline
- Minute of Paterson
J ordering directions
conference
6 May 1999 CP 143-SD99 Direct ions conference minute of Williams J
3 June 1999 CP 143-SD99 Direct ions conference minute of Goddard J
17 June 1999 CP 143-SD99 Direct ions conference minute of Anderson J
8 July 1999 CP 143-SW99 Statement of defence filed by the Mr Hockey and
the Pinnacle companies
29 July 1999 CP 143/99 Evaluat ion conference minute of Randerson J
setting a timetable and allowing for formal
mediat ion in September 1999
16 August 1999 CP 143-SW99 Amended statement of defence and counterclaim
filed by Mr Hockey and the Pinnacle companies
14
October 1999 Settlement agreement signed between Wiseline
and Mr Hockey following
mediation, independent
accountant to prepare set of accounts regarding
debts outstanding
1 November 1999 CP 143-SD99 Minute of Master Gambrill adjourning
proceedings until April 2000 to allow the
settlement to be effected.
14 April 2000 CP 143-SD99 Minute of Master Faire adjourning proceedings by
consent
-
17 May
2000 CP 143-SD99 Minute of Master Gambrill adjourning the
proceedings and timetabling a date for
Mr Hockey to file a notice of opposition
- Notice of interlocutory
application by
Wiseline for orders requiring production of
documents
19 May 2000 Mr Hockey dies.
2 June 2000 CP 143-SD99 Minute of Master Faire adjourning the
applicat ions for orders for production of
documents as a result of Mr Hockey's death
6 June 2000 CP 474-SW01 Two caveats lodged against the Coromandel
property by Wiseline
7 June 2000 P1465/2000
Caveat lodged against the grant of probate by
Wiseline
14 July 2000 CP 143-SD99 Minute of Master Faire adjourning proceedings by
consent
-
28 July
2000 CP 143-SD99 Notice of discontinuance against Pinnacle
companies filed by Wiseline
- Minute of Master Faire adjourning
proceedings for counsel for Mrs Hockey to
advise Wiseline about the contents of
Mr Hockey's estate
July 2000 CP 143-SW99 Applicat ion by Wiseline for orders substituting
Mrs Hockey as executor for Mr Hockey
4 August
2000 CP 143-SD99 Minute of Master Faire adjourning proceedings
for Mrs Hockey to file an affidavit
September 2000
M 1433-IM00 Applicat ion by Mrs Hockey for removal of caveat
fro m Coromandel property
15
September 2000 CP 143-SD99 Minute of Master Faire adjourning proceedings
for counsel for Wiseline to obtain instructions
20 October 2000 CP 143-SD99 Minute of Master Faire adjourning proceedings
for counsel for Wiseline to obtain instructions
2 November 2000 CP 143-SD99 Minute of Master Faire relating to case
management of discovery application by Wiseline
15 December
2000 CP 143-SD99 Minute of Master Faire relating to case
management of discovery application by Wiseline
26 January
2001 CP 143-SD99 Minute of Master Faire adjourning application for
discovery by Wiseline
19 March 2001 CP 143-SD99 Minute of Master Faire relating to case
management of discovery application by Wiseline
April
2001 CP 143-SW99 Applicat ion by Wiseline to join Mrs Hockey as an
addit ional defendant
20 April 2001 CP 143-SD99 Minute of Master Faire regarding case
manangement of application for joinder
11 May 2001 CP 143-SW99 Minute of Master Faire striking out joinder
applicat ion and substantive proceedings because
no appearance for either Wiseline or Mrs Hockey
was made
-
23 July 2001 CP 474-SW01 Judgment of Master Gambrill declining an
adjournment application by Wiseline with
respect to the proceedings removing the caveat
- Wiseline
consented to letting caveats over
Coromandel property lapse
- Wiseline lodged further caveats against the
tit le of the Coromandel property
8 August
2001 P2078/01 Applicat ion by Mrs Hockey for probate
17 August 2001 CP 143-SD99 Minute of Master Faire noting an adjournment of
reinstatement proceedings by consent
-
29 August 2001 CP474-SW01 Application by Wiseline for ex parte orders
restraining Mrs Hockey from taking any steps
in relation to the Coromandel
property.
- Judgment of Morris J declining to make those
orders ex parte
- Statement of claim filed by Wiseline against
Mrs Hockey as executor and Mrs Hockey
personally
- Notice of proceeding filed by Wiseline against
Mrs Hockey as executor and Mrs Hockey
personally
- Wiseline filed an undertaking to abide by
any
order of the Court in respect to damages
30 August 2001 CP474-SW01 Judgment of
Morris J granting adjournment of
hearing regarding application for restraining
orders over Coromandel property
31 August 2001 CP 143-SD99 Minute of Master Faire allowing application by
Mrs Hockey for adjournment of reinstatement
proceedings
28 September 2001 CP 143-SD99 Judgment of Master Faire ordering reinstatement
of the original proceedings
5 October 2001 CP 143-SD99 Amended application by Wiseline for orders that
Mr Hockey be substituted for Mrs Hockey as
executor and that Mrs Hockey be joined
30 October 2001 P2078/01 Applicat ion by Mrs Hockey
seeking orders for the
caveat against probate lodged by Wiseline be
struck out and that the estate be administered
under Part XVII of the Insolvency Act 1967
and
that the Official Assignee be appointed
administrator of
the estate
2 November 2001 CP 143-SD99 Minute of Master Faire adjourning application for
removal of caveat against the grant of probate
5 November 2001 M1433-IM00 Judgment of Master Gambrill ordering Wiseline to
pay costs on
the caveat removal proceedings
22 November 2001 CP 143-SD99 Draft of first amended statement of claim filed by
Wiseline
23 November 2001 CP 143-SD99 Minute of Master Faire timetabling application by
Wiseline for substitution and joinder
November
2001 CP 143-SD99 Draft statement of defence to amended statement
of claim filed by Mrs
Hockey
6 December 2001 Applicat ion by Wiseline for enlargement of time
and review
of Master Gambrill's 5 November
2001 judgment
7 December 2001 CP 143-SD99 Judgment of Nicholson J making order for
subst itution of Mrs Hockey as executor for
Mr Hockey and joining Mrs Hockey as second
defendant
13 December 2001 CP 474-SW01 Minute of Nicholson J directing counsel appear
the next day
14 December 2001 CP 474-SW01 Minute of Nicholson J setting down a four day
hearing starting 19 February 2002
-
20 December 2001 M1433-IM00 Oral judgment of Nicholson J declining
applicat ions by Wiseline for a review of costs
orders and orders staying costs judgment
sealed 22 November 2001
- Mrs Hockey served Wiseline with
statutory
demand for amount due as a result of Master
Gambrill's
judgment of 5 November 2001
-
January 2002 CP 143-SD99 Mrs Hockey made a statutory demand for
payment of the caveat removal costs
- Application by Wiseline to set aside the
statutory demand for payment
of the caveat
removal costs
21 January 2002 CP 143-SD99 Hearing in front of Nicholson J regarding
applicat ion by Wiseline to set aside statutory
demand which was adjourned, oral application for
adjournment of the
fixture
25 January 2002 CP 474-SW01 Judgment of Nicholson J declining application by
Wiseline for adjournment of fixture
7 February
2002 CP 143-SD99 Applicat ion by Mrs Hockey for leave to apply for
securit y for costs and an order that Wiseline
give
securit y for costs
13 February 2002 CP 143-SD99 Telephone conference with Nicholson J ordering
Wiseline to file amended statement of claim,
provide a brief of evidence from Mr Darby and
adjourning the application
for security for costs.
15 February 2002 CP 143-SD99 First amended statement of claim filed by
Wiseline involving Spaceways as second plaintiff
February
2002 CP 143-SD99 Statement of defence to amended statement of
claim filed by Mrs Hockey
12 March 2002 M143-SD99
Minute of Nicholson J adjourning of substantive
hearing with directions for the parties to consider
and deal with outstanding issues including an
applicat ion for an unless
order for outstanding
costs, leave for joinder of Spaceways, whether
Wiseline and Spaceways should provide security
for costs, further discovery, whether restraint of
dealing with the Coromandel property should
continue.
20 March 2002
M143-SD99 Oral judgment of Nicholson J declining the unless
order for outstanding costs, granting
leave for the
jo inder of Spaceways, requiring security for costs
fro
m Wiseline and Spaceways by 20 May 2002,
staying proceedings until security paid, voiding
the caveats lodged over the Coromandel property
on 23 July 2001 and lifting
any restraints over sale
of Coromandel property but requiring that
proceeds of sale be held on trust. Proceedings
were adjourned to 5 June 2002 for an evaluation
conference
17 April 2002 M143-SD99 Notice of appeal by Wiseline and Spaceways
against order for security for costs
18 April 2002 M143-SD99 Letter from Court of Appeal: application for leave
to appeal security for costs out of time required
23 April 2002 M143-SD99 Letter from Court
of Appeal: application for leave
to appeal security for costs out of time required
7 May 2002
M383/IM02 Minute of Nicholson J directing that he was the
appropriate judge to hear the application
to set
aside the statutory demand, setting down the
hearing for 16
May 2002
15 May 2002 M383/IM02 Applicat ion for review of 7 May 2002 direction
filed by Wiseline
16 May 2002 M383/IM02 Oral judgment of Nicholson J adjourning
applicat ion for review of
decision of 7 May 2002
5 June 2002 CP143-SD99 Evaluat ion conference minute of Nicholson J
regarding timetabling by consent
M 1912/01
CP 474-SW091
P 2078/02
P 1976
P 1465/00
12 June 2002 CP143-SD99 Applicat ion for review of the consent timetabling
M 1912/01 orders of the evaluation
conference of 5 June 2002
filed by Wiseline and Spaceways
CP 474-SW091
P 2078/02
P 1976
P 1465/00
13 June 2002 CP 474-SW01 Applicat ion by Mrs Hockey for removal of
condit ion as to the proceeds of sale
-
25 June 2002 M383/IM02 Judgment of Nicholson J declining the
applicat
ion by Wiseline for review of a refusal
to set aside a statutory demand
- Official Assignee places caveat over the
Coromandel property
27 June 2002 CP143-SD99
Minute of Nicholson J directing that the
M 1912/01 applicat ion for review of the consent timetabling
CP 474-SW091 orders be set down for hearing on 4 July 2002 and
P 2078/02 that applications to set
aside the statutory notice,
P 1976 remove the Coromandel property sale condition
P 1465/00
and for probate and administration be set down on
10 July 2002.
1 July 2002 CP143-SD99
Counsel for Wiseline and Spaceways advises the
Court that he wishes to withdraw.
M 1912/01
CP 474-SW091
P 2078/02
P 1976
P 1465/00
4 July 2002 CP143-SD99 Oral judgment of Nicholson J granting counsel
M 1912/01 leave to withdraw. Application
for Mr Darby to
CP 474-SW091 represent Wiseline and Spaceways served,
M 383/IM02 proceedings
adjourned to allow consideration of
P 2078/02 the application to 10 July 2002
P 1976
P 1465/00
8 July 2002 M1433-IM00 Applicat ion by Wiseline for enlargement of time
and review of the 23 July 2001 and 5 November
2001 judgments of Master Gambrill and the
20 December 2001 judgment of Nicholson J
15 July 2002 M1433-IM00 Further memorandum filed by Wiseline
in support
of the application for enlargement of time and
review filed
on 8 July 2002
19 July 2002 Decisio n of the Court of Appeal allowing an
applicat
ion for review of the Registrar's decision
not to waive the filing fee. Referred back to the
Registrar
26 July 2002 Judgment of Nicholson J :
CP143-SD99
M 1912/01 - Declining an application by Wiseline for
CP 474-SW091 enlargement
of time for review of judgments
P 2078/02 given by Master Gambrill on 23 July 2001 and
P 1976 5 November 2001 and by Nicholson J on
P 1465/00 20 December 2001;
- Declining an application by Wiseline to set
aside
statutory demand;
- Dismissing the application by Wiseline and
Spaceways for review of timetabling orders
made 5 June 2002; and
- Declining to allow Mr Darby to represent
Wiseline and
Spaceways.
22 August 2002 CA172/02 Appeal to Court of Appeal filed by Wiseline
10 September 2002 CA172/02
Court of Appeal deems appeal abandoned as a
result of the failure to pay security for costs
24 September 2002 CP 474-SW01 Applicat ion by Wiseline and Spaceways for orders
extending the time for bringing an
appeal and
fixing the time within which the appeal may be
brought
16 October 2002 CP 143-SD99 Oral judgment of Nicholson J re: application by
M 1433-IM/00 Wiseline and Spaceways for leave to appeal
P1465/00 judgments out of time, leave to counsel to
withdraw
CP 474-SW01
M 1912/01
P1976 & 2078/01
M383-IM02
18
October 2002 Letter from Court of Appeal to Wiseline in respect
of the
need to apply for leave to appeal security
for costs out of time.
13 November 2002 CA245/02
Appeal to Court of Appeal and application for stay
or execution or stay of proceedings
filed by
Wiseline regarding Nicholson J's judgment of
26 July 2002
15 November 2002 M143-SD99 Wiseline files application for leave to appeal
(CP 143-SD99)
securit y for costs out of time and an order fixing
the time within which such an appeal
may be
CP 474-SW01
brought.
-
18
November 2002 CP 474-SW01 Application by Wiseline to stay execution of
proceedings under decision of 20
March 2002
in respect of restraint of sale of the
Coromandel property or seeking an
interlocutory injunction restraining
Mrs Hockey from dealing with the
Coromandel property, an order
for
preservat ion of the property, an order that the
12 June 2002 application be stayed and leave
to issue a charging order in respect
of the
property. Nicholson J directed a timetable for
Mrs Hockey to have the opportunity to reply
to the applications
- Application by Mrs Hockey to remove
condit ion as to proceeds of
sale
- Wiseline lodges another caveat over the
Coromandel
property
26 November 2002 CP 143-SD99 Judgment of Nicholson J removing caveat against
M 1433-IM/00 the grant of probate, granting orders
for
P1465/00 administration of the estate, appointing the
CP 474-SW01 Official
Assignee as administrator of the estate,
M 1912/01 accept ing application to remove orders restraining
P1976 & 2078/01 disposit ion of Coromandel property and proceeds,
M383-IM02 and miscellaneous
applications filed by Wiseline
and Spaceways
4 December 2002 CP 474-SW01 Court rescinds restraining order on sale proceeds
13 January 2003 CA4/03 Wiseline lodged an appeal in Court of
Appeal and
applied for stay of execution or stay of
proceedings
in respect of the judgment of 26 July
2002
17 January 2003 CA4/03 Court of Appeal
advised Wiseline that rules
relat ing to filing of appeals started to run on
13 January 2003, including 14 days to give
securit y.
28 January 2003
CA4/03 Minute of Priestley J extending 14 days for
securit y until 5 February
2003.
5 February 2003 CP 474-SW01 Oral judgment of Nicholson J allowing application
by Wiseline for orders enlarging time
for giving
securit y for costs and incidental orders, giving
Wiseline a further 14 days to file security fixed at
$2,000
24 March 2003 CP 143-SD99 Applicat ion by Wiseline for directions from the
M 1433-IM/00 Court on various matters including costs,
security
P1465/00 for costs on appeal, an evaluation conference and
CP 474-SW01 advice
on the `next step'
M 1912/01
P1976 & 2078/01
M383-IM02
9 April 2003 CP 143-SD99 Minute of Nicholson J dealing with application of
M 1433-IM/00 24 March 2003 by Wiseline. Evaluation
conference scheduled for 1 May 2003
P1465/00
CP 474-SW01
M 1912/01
P1976 & 2078/01
M383-IM02
1 May 2003 CP 143-SD99 Minute of Nicholson J regarding Wiseline and
M 1433-IM/00 Spaceway's failure to appear at an evaluation
P1465/00 conference, adjourning the evaluation conference
CP 474-SW01 for three months
to 7 August 2003 and directing
M 1912/01 timetabling for filing
P1976 & 2078/01
M383-IM02
13 May 2003 CP 143-SD99 Applicat ion by Wiseline for an extension of time
M 1433-IM/00 for applying for fixture and filing the
case on
P1465/00 appeal in the Court of Appeal filed in the High
CP 474-SW01 Court
in respect of the three appeals lodged on
M 1912/01 13 November 2002, 13 January 2003 and 17 April
P1976 & 2078/01 2002.
M383-IM02
20 May 2003 CP 143-SD99 Minute of Nicholson J directing that the 13 May
M 1433-IM/00 2003 application for extension of time for
P1465/00 applying for fixture and filing the case on appeal
should have
been filed in the Court of Appeal.
CP 474-SW01
M 1912/01
P1976 & 2078/01
M383-IM02
17 June 2003 CA245/02 Judgment of the Court of Appeal regarding
applicat
ion by Wiseline and Spaceways for an
order that time for applying for a fixture and filing
the case on appeal be extended. In the grounds of
the application
were references to appeals from
three interlocutory decisions of Nicholson J.
Blanchard J dismissed the application.
7 August 2003 CP 143-SD99 Conference Minute of Nicholson J regarding
Wiseline's failure to file a memorandum
regarding
evaluat ion conference. Because of confusion
regarding whether any appeal matters were still
live, the evaluation conference was adjourned
to
29 October 2003.
8 August 2003 CIV 2003-404-4420 Ex parte application filed by Mrs
Hockey for
removal of caveat over Coromandel property
18 August 2003 CIV 2003-404-4420
Oral judgment of Nicholson J adjourning
applicat ion by Mrs Hockey for removal of caveat
22 August 2003 CIV 2003-404-4420 Oral judgment of Nicholson J granting application
by
Mrs Hockey for removal of caveat
28 October 2003 CIV 2003-404-4420 Judgment of Nicholson J declining to award costs
on an application by Mrs Hockey for removal of
caveat
30 October
2003 CP 143-SD99 Judgment of Nicholson J directing timetable
orders
19 December 2003 CP 143-SD99 Judgment of Nicholson J declining Wiseline's
applicat ion for leave to appeal out
of time and
requiring security for costs to be paid by Wiseline
by 5 February 2004.
4 February 2004 CP 143-SD/99 Minute of Nicholson J varying the timetabling
orders
9 February 2004 CP 143-SW99 Notice of Appeal against judgment of
19 December 2003 filed by Wiseline and
CIV 936/99
Spaceways
2 April 2004 M143-SD99 Wiseline pays security
for costs
16 April 2004 CP143-SD/99 / CIV Minute of Nicholson J extending timetabling
1999-404-000936
orders due to a change of counsel for Wiseline
-
28 May 2004 CP 143-SW99 Second amended statement of claim filed by
Wiseline
- Statement of defence to second amended
statement of claim filed by
Mrs Hockey as
former executor of the Mr Hockey's estate
-
31 May 2004 CP 143-SW99 Statement of defence to second amended
statement of claim filed by Mrs Hockey
21 July 2004 CP143-SD/99 Three day trial vacated on Wiseline's application
18 August 2004 CP143-SD/99 Notice
of Abandonment issued by the Registrar of
the Court of Appeal due to expiry under r 10 of
the Court of Appeal (Civil) Rules 1997
20 September 2004 CA4/03 Judgment
of the Court of Appeal dealing ordering
that Wiseline and Spaceways pay costs in respect
CA245/02
of their various appeals and striking out CA4/03
21 February
2006 CIV 1999-404-000936 Notice of discontinuance against Mrs Hockey
personally filed
by Wiseline
22 February 2006 CP143-SD/99 Teleconference minute of Venning J staying
Wiseline's claim against Mrs Hockey as executor
and discontinuing of Spaceway's
claim filed
22 November 2006 CIV 1999-404-000936 Minute of Venning J regarding costs application
29 November 2006 CIV 1999-404-000936
Minute of Venning J regarding costs application
4 April 2007 CP143-SD/99 Costs hearing before Stevens J
Schedule 2
Further costs sought
Wiseline
(a) The costs reserved
in terms of Minute of Nicholson J of 14 December 2001
category 2B; items 4.10 and 4.11 concerning a directions hearing 0.7
days at
$1,300.00 = $910.00.
(b) The costs reserved by Order of 20 March 2002 for caveat removal the
second caveat
lodged being category 2B, item 1 commencement of
proceedings; item 8 preparation time (one day); item 9 appearance at hearing
(half a day) 4.5 days at $1,300.00 per day = $5,850.00 plus filing fee of
$900.00 = $6,750.00.
(c) The costs that
were reserved by Order of Court dated 20 March 2002 in
respect of the application for security for costs and trial of proceedings,
being
category 2B, item 4.12 preparation and filing of interlocutory application;
item 4.14 preparation for hearing of
defended application (half a day); item
4.15 appearance at defended interlocutory application (half a day) 1.6 days
at $1,300.00 per day = $2,080.00 plus disbursement being filing fee $400.00
a total of $2,480.00.
(d) The costs that
were reserved by judgment of 18 August 2003 on originating
applicat ion to remove fourth caveat being category 2B as per
subparagraph (b) above except daily rate $1,450.00 not $1,300.00 =
$7,425.00.
(e) Costs in respect of preparation
for trial being category 2B scale, items 7.3 and
7.4 defendants' preparation item 4.10 memorandum for callover
conference;
item 4.11 appearance at setting down telephone conference 4.7
days at $1,450.00 = $6,815.00.
Spaceways
(a) The costs
that were reserved by Order of Court dated 18 March 2002 as per
paragraph 2.3(c) above - $2,480.00.
The costs in respect
of preparation for trial as per paragraph 2.3(e) above -
$6,815.00.
Schedule 3
Costs
orders already made
Plaintiff concerned Date of sealing Amount of costs
Wiseline
22 November 2001 $14,581.86
(Judgment 5 November 2001)
Wiseline
Not sealed confirmed in letter from $1,105.00
D Smythe 29 January 2002
Wiseline 1 October 2002 $2,470.00
(Judgment
20 December 2001)
Wiseline 23 August 2002 $1,625.00
(Judgment 25 June 2002)
Both
plaintiffs 23 August 2002 $3,380.00
(Judgment 26 July
2002)
Wiseline 3 October 2002 $5,190.00
(Judgment
27 September 2002)
Wiseline 28 November 2002 $7,175.00
(Judgment 18 November 2002) ($6,240.00 plus
disbursements of
$935.00)
Wiseline
4 December 2002 $2,245.00
(Judgment 26 November 2002)
Both plaintiffs 13 January 2004 $5,010.00
($2,505.00 each) (Judgment
19 December 2003)
Both plaintiffs Not sealed 19 April 2004 $870.00
Minute of Nicholson J
Summary
1. Costs orders against Wiseline in favour of Rita Hockey $41,146.86
2.
Costs orders against Spaceways in favour of Rita Hockey $6,755.00
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