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CNP Holdings Ltd v Central Park Property Investment Limited [2024] NZHC 3359 (12 November 2024)

Last Updated: 27 November 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[costs]

This judgment was delivered by me on 12 November 2024 at 2 pm.

Pursuant to Rule 11.5 of the High Court Rules.

.......................

Registrar/Deputy Registrar

Solicitors/Counsel:

Lindsay Francis & Mangan Bankside Chambers, Auckland Shortland Chambers, Auckland

CNP HOLDINGS LTD v CENTRAL PARK PROPERTY INVESTMENT LTD [2024] NZHC 3359

[12 November 2024]

AND MAAT CONSULTING LIMITED

Fourth Defendant

MICHELLE JANE LOMAS

Fifth Defendant

JODI ANNE TUFFIN

Sixth Defendant

Introduction

• [1] The plaintiff, CNP Holdings Ltd (CNP), is a company controlled by Craig Priscott (Mr Priscott). Mr Priscott describes himself as an “activist investor”.

• [2] CNP brought this proceeding seeking declarations that the defendants breached the Financial Markets Conduct Act 2013 (FMCA) when raising capital for a property development (the property development), together with compensation orders in favour of some of the retail investors in that development.

• [3] CNP alleged that the defendants breached various obligations under the FMCA in respect of the last of four capital raises, causing losses to the retail investors of approximately $4 million. None of the retail investors were parties to the proceeding. Mr Priscott’s position was that the proceeding was brought in the public interest and for no financial gain for CNP.

• [4] The fourth defendant, Maat Consulting Ltd (Maat), is a property management company. Maat managed the entities that raised capital for the property development.

• [5] Maat also promotes and establishes investment companies based on syndicated ownership, to purchase and hold commercial property. Maat then manages the property for the syndicate. When this proceeding was commenced, Maat was managing 11 properties under this model (Maat’s business interests).

• [6] The defendants applied for an order striking out the proceeding, including on the ground that the proceeding was an abuse of process because it was brought for an improper purpose:

(a) to pressure Maat into selling its business interests to Mr Priscott’s interests; and/or

(b) to drive Maat out of business.

• [7] In a judgment dated 5 September 2024 (the judgment), I struck out CNP’s claims in their entirety on the ground that CNP commenced the proceeding for the

dominant improper purpose of furthering Mr Priscott’s goal of acquiring Maat’s business interests.¹

• [8] The parties agree that the defendants are entitled to an award of costs. The parties have been unable to agree on quantum, which I now determine in this judgment.

• [9] There are two issues to determine:

(a) What is the appropriate award of costs?

(b) Should costs be ordered against Mr Priscott as a non-party?

What is the appropriate award of costs?

Legal principles

• [10] While all matters relating to costs are at the discretion of the Court,² that general discretion is qualified by the specific costs rules in the High Court Rules 2016 (HCR) and is exercisable only in situations not contemplated or not fairly recognised by the HCR.³ Ordinarily, the loser pays the winner’s costs according to the scale set out in the HCR.⁴

• [11] The Court may make an order for increased costs or indemnity costs in the circumstances provided for under r 14.6(3) and (4) of the HCR.

• [12] Under r 14.6(3)(d), the Court may order a party to pay increased costs if “some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.”

¹ CNP Holdings Ltd v Central Park Property Investment Ltd [2024] NZHC 2541.

² High Court Rules 2016, r 14.1(1).

³ Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [6].

⁴ High Court Rules, r 14.2(1)(a).

• [13] Under r 14.6(4)(a), the Court may order a party to pay indemnity costs if “the party has acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding”.

• [14] In Bradbury v Westpac Banking Corporation, the Court of Appeal summarised the circumstances where scale costs, increased costs and indemnity costs might be ordered:⁵

(a) standard scale applies by default where cause is not shown to depart from it;

(b) increased costs may be ordered where there is failure by the paying party to act reasonably; and

(c) indemnity costs may be ordered where that party has behaved either badly or very unreasonably.

• [15] The party claiming indemnity costs bears the onus of persuading the Court that the award is justified.⁶

• [16] Abuse of process covers a wide array of circumstances. Generally, a successful strike-out application for abuse of process does not, without more, automatically entitle the successful party to indemnity costs, or even to increased costs.⁷ The focus is on the conduct of the party opposing costs or the manner in which it defended the application for strike-out, which might justify indemnity costs.⁸

• [17] Indemnity costs are reserved for egregious conduct.⁹ In Bradbury, the Court of Appeal gave examples of cases in which indemnity costs have been ordered, noting that the categories are not closed. One example was “commencing or continuing proceedings for some ulterior motive”.¹⁰

• [18] Mr Bradbury and his firm had performed specialist legal services for Westpac. They unsuccessfully sued the bank and its group secretary for damages, alleging

⁵ Bradbury v Westpac Banking Corp, above n 3, at [27].

⁶ SPAK (1996) Ltd v Leroy [2022] NZCA 564, (2022) 23 NZCPR 769 at [189].

⁷ Whitford Properties Ltd (in liq) v Coumat Ltd [2019] NZHC 2199 at [19].

⁸ Minister of Education v James Hardie New Zealand [2018] NZHC 2960 at [21].

⁹ AFI Management Pty Ltd v Lepionka & Company Investments Ltd [2018] NZHC 1285 at [17].

¹⁰ Bradbury v Westpac Banking Corp, above n 3, at [29].

breach of a contractual obligation to retain Mr Bradbury’s firm for so long as it continued to perform to the satisfaction of Westpac and to meet certain obligations of loyalty.¹¹ The trial judge found Mr Bradbury’s actions pointed to a sustained pattern of misconduct, which signalled Mr Bradbury’s intention to extract a financial windfall from the bank by abusing the process of the Court.¹² Indemnity costs were ordered.

• [19] In the Court of Appeal, Baragwanath J considered the award of indemnity costs was justified on two distinct grounds.¹³ First, the case was hopeless and the plaintiffs’ misconduct in pursuing it was flagrant.¹⁴ Secondly, the evidence supported a finding that the plaintiffs had commenced and continued the proceeding for an improper motive.¹⁵ Baragwanath J agreed with the High Court that the plaintiffs’ conduct preceding the issue of the proceeding was powerful evidence of the motivation for the subsequent litigation.¹⁶

• [20] In Mao v Findlay, the plaintiffs sought the resolution of a substantive dispute in New Zealand to maintain a forum conveniens argument in a related proceeding in China. Moore J was satisfied that the plaintiffs commenced and continued the proceeding with an ulterior motive and an improper purpose, ordering indemnity costs.¹⁷

• [21] In Mao v Best Capital Ltd, Associate Judge Sussock ordered indemnity costs on a successful strike-out application. The proceedings were filed with the ulterior motive of delaying bankruptcy proceedings.¹⁸

• [22] In Mueller v Hendren, Heath J held that the defendant maintained a caveat against a grant of probate for a collateral purpose. Heath J awarded increased costs with a 75 per cent uplift rather than indemnity costs, to ensure no double counting of costs occurred.¹⁹

¹¹ At [2].

¹² At [81].

¹³ At [80].

¹⁴ At [80].

¹⁵ At [81].

¹⁶ At [85].

¹⁷ Mao v Findlay [2023] NZHC 3036 at [21] and [23].

¹⁸ Mao v Best Capital Ltd [2021] NZHC 735 at [75]–[76] and [79].

¹⁹ Mueller v Hendren [2009] NZHC 710; (2009) 19 PRNZ 432 (HC) at [25]–[28].

• [23] In Watson & Son Ltd v Active Manuka Honey Association Inc (No 3), Heath J held that the proceeding was prosecuted for an ulterior purpose and again awarded increased costs rather than indemnity costs on a successful strike-out.²⁰

• [24] Where a proceeding is brought for a dominant improper purpose, the availability of damages in tort for wasted costs should be considered. The tort of abuse of process requires:²¹

(a) the use of a legal process;

(b) in order to accomplish an ulterior purpose;

(c) which is the predominant purpose, and

(d) which causes damage to the plaintiff.

• [25] The common law has recognised a rule limiting the damages that can be recovered by a victim of the similar tort of malicious institution of civil proceedings without any reasonable and probable cause.²² A victim, as plaintiff in a later proceeding in tort, cannot recover the difference between the costs awarded in the struck-out proceeding and indemnity costs, leaving the victim out of pocket if indemnity costs were not awarded following the strike out.²³

• [26] The rigidity of the rule limiting damages has been questioned by the United Kingdom Supreme Court.²⁴ However, the potential application of this rule supports an award of indemnity costs following strike-out of a proceeding commenced for a dominant improper purpose, where the established criteria for indemnity costs are met.

²⁰ Watson & Son Ltd v Active Manuka Honey Association Inc (No 3) HC Hamilton CIV-2008-419-1495, 16 March 2010.

²¹ Deliu v Hong [2013] NZHC 735 at [50].

²² The availability of this tort in New Zealand is uncertain. See New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA).

²³ Quartz Hill Consolidated Gold Mining Co v Eyre [1883] UKLawRpKQB 126; (1883) 11 QBD 674 (CA) at 690; Ritchie v British Insulated Callender’s Cables (Aust) Pty Ltd (1959) 77 WN (NSW) 299; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358; and QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 at 261.

²⁴ Willers v Joyce [2016] UKSC 43 at [58]. See also New Zealand Social Credit Political League Inc v O’Brien, above n 22, at 89.

• [27] When making an order for increased costs, the Court uplifts from scale, rather than awarding a percentage of actual costs.²⁵ A 50 per cent uplift on scale is at the upper end and is typical in increased costs orders. However, 50 per cent is not a cap.²⁶

• [28] The scale reflects the complexity and significance of the proceeding. When the scale was introduced, it was assessed at two-thirds of the daily rate considered reasonable in relation to the proceeding.²⁷ However, the days when an uplift of 50 per cent reflected a full recovery of costs are long gone.

• [29] Indemnity costs under r 14.6(1)(b) of the HCR are “the actual costs, disbursements, and witness expenses reasonably incurred by a party”. The Court is entitled to take a robust judgement as to what is reasonable in the circumstances.²⁸ Rule 14.6(1)(b) envisages a degree of judicial oversight which ought to be exercised in a manner which delivers a just and fair result.²⁹

• [30] Costs are reasonably incurred if a reasonable observer would expect those costs to be incurred. It is not appropriate for the Court to make a finding of reasonableness solely by a comparison of costs charged against the substantive sum at stake.³⁰

• [31] Indemnity costs are calculated based on the appropriate time taken, the significance and complexity of the work, and a median hourly rate reasonably applicable.³¹

• [32] There is an evidential onus on the party seeking to establish the quantum of reasonable indemnity costs. For example:

(a) In Ballantyne Trustees Ltd v GBR Investment Ltd, Associate Judge Matthews required unredacted invoices giving a full description

²⁵ Holdfast NZ Ltd v Selleys Pty Ltd [2005] NZCA 302; (2005) 17 PRNZ 897 (CA) at [40].

²⁶ At [46]–[48].

²⁷ Bradbury v Westpac Banking Corporation, above n 3, at [6]; and High Court Rules, r 14.2(1)(d).

²⁸ Kim v Christchurch City Council [2024] NZHC 486 at [12].

²⁹ Bradbury v Westpac Banking Corp [2008] NZHC 751; (2008) 18 PRNZ 859 (HC) at [205].

³⁰ Edel Metals Group Ltd v Geier Ltd [2018] NZCA 494 at [62].

³¹ Bradbury v Westpac Banking Corp, above n 29, at [204] and [209].

of the work undertaken in respect of each invoice, hourly rates applied and the number of hours undertaken in relation to the steps described.³²

(b) In Muir v Commissioner of Inland Revenue, Faire J noted that the usual procedure for a party seeking indemnity costs is to provide an affidavit illustrating how the costs were incurred, showing a breakdown of the time spent on the litigation, hourly rates, a breakdown of disbursements and any additional evidence which shows that the rates charged and the work undertaken were reasonable.³³

(c) In International Roofing Ltd v Global Roofing Solutions, Associate Judge Bell noted he would have been assisted by evidence from an independent lawyer who had reviewed the work carried out by counsel for a non-party seeking costs on a non-party discovery order. Without such independent evidence, it was difficult to assesses the reasonableness of the fees claimed.³⁴

• [34] Where possible, the applicant for indemnity costs should provide a breakdown of the costs incurred by reference to:

(a) the major steps in the defence, with the steps identified in sch 3 to the HCR as the logical starting point; and

(b) for each step, the hours claimed for each fee earner, their level of experience and the hourly rate charged.

• [33] Provision of this information is not unduly onerous. Similar information is regularly provided by liquidators in support of applications under the Companies Act 1993 for approval of their remuneration.

³² Ballantyne Trustees Ltd v GBR Investment Ltd [2017] NZHC 908 at [23].

³³ Muir v Commissioner of Inland Revenue [2015] NZHC 2855 at [16].

³⁴ International Roofing Ltd v Global Roofing Solutions Ltd [2014] NZHC 2913 at [31]–[32].

The defendants’ arguments

• [34] The defendants seek indemnity costs and disbursements of $594,908.74, or alternatively, increased costs and disbursements of $187,265.47.

• [35] The defendants argue that indemnity costs are appropriate because the proceeding was commenced or continued for an ulterior motive. The defendants rely on three findings in the judgment:³⁵

[85] The correspondence and documents exchanged by the parties from September 2022 to March 2023 demonstrates incontrovertibly that:

...

(b) CNP used the threat of this proceeding to pressure the defendants to commence to negotiate a transfer of Maat’s business interests to an entity controlled by Mr Priscott.

...

(f) Mr Priscott’s decision in February 2023 to instruct Russell McVeagh to commence this proceeding was a direct and immediate response to Maat’s refusal to agree to Mr Priscott’s proposal of exit fees for Maat in the vicinity of $1,715,000.

...

[89] Even so, for the purpose of this analysis, I accept that Mr Priscott’s stated public interest purpose is one of CNP’s purposes in bringing this proceeding. The other collateral purpose that I have found established is Mr Priscott’s goal of acquiring Maat’s business interests in managing the 11 property syndicates; either by pressuring Maat to resume negotiations for CNP’s acquisition of Maat’s business interests, or by forcing Maat out of business as the manager of the property syndicates to open the way for CNP to acquire those interests.

• [36] Counsel for the defendants submits that CNP unnecessarily joined directors and employees of Maat as defendants and threatened to join other family members of the directors, and that this underlines the illegitimate nature of the pressure sought to be applied by the Court’s processes.

• [37] Finally, the defendants refer to their offer to CNP made shortly before the strike-out hearing, which proposed that both parties abandon the litigation with costs to lie where they fall.

³⁵ CNP Holdings Ltd v Central Park Property Investment Ltd, above n 1.

CNP’s arguments

• [38] CNP argues that indemnity costs are not appropriate because one of CNP’s purposes was the public interest. Counsel for CNP submits that, in any event, the defendants have failed to put sufficient information before the Court to enable the Court to determine reasonable indemnity costs.

• [39] CNP seeks a deduction in costs on the ground that the defendants unnecessarily adduced, and made arguments on, a significant amount of “propensity evidence”. No award of costs should be made in respect of that step by the defendants.

• [40] CNP submits that the defendants should be awarded 2B costs and disbursements of $74,218.47, less an appropriate deduction for pursuing arguments based on the propensity evidence.

Analysis

• [41] An award of costs limited to the time allocations and daily recovery rates prescribed in schs 2 and 3 to the HCR will not do justice given my finding that this proceeding was commenced for a predominant improper purpose,³⁶ notwithstanding that one of CNP’s purposes was to further the public interest.³⁷ The issue is whether the award should be for indemnity costs or increased costs.

• [42] I am not prepared to award indemnity costs for three reasons. First, the defendants have failed to provide sufficient information for the Court to assess whether the indemnity costs claimed are reasonable.

• [43] The second defendant, Neil Tuffin (Mr Tuffin), has provided an affidavit in support of the defendants’ application for costs. He has produced the invoices rendered by the defendants’ solicitors and counsel. However:

(a) the solicitors’ invoices do not include narrations of the work covered by the invoice, the time spent or the hourly rates;

³⁶ At [90].

³⁷ At [89].

(b) the only information that can be gleaned from the solicitors’ invoices is the monthly amounts invoiced;

(c) counsels’ invoices provide some narration of the work covered by the invoice, together with the total hours spent by each fee author and their hourly rate;

(d) collectively, the invoices of the solicitors and counsel provide no basis to allocate the fees charged for particular steps taken in the defence.

• [44] Mr Tuffin has produced a spreadsheet which lists the invoices and the total of the fees and disbursements exclusive of GST. There is no evidence as to who prepared the spreadsheet. The spreadsheet does not contain any analysis of the fees charged for particular steps taken in the defence.

• [45] The spreadsheet records a reduction of $12,800 including GST. Mr Tuffin says that this deduction applies to four invoices, for services not directly related to the proceeding. There is no explanation of who calculated the deduction or the methodology.

• [46] It is not possible to assess what costs were incurred for each step in the defence, and therefore, to determine whether those costs were reasonably incurred.

• [47] Secondly, the defendants’ arguments based on propensity contributed unnecessarily to the time and expense of the proceeding. This would ordinarily justify a reduction in costs under r 14.7(f)(ii) of the HCR.

• [48] Mr Tuffin says that his understanding is that the cost of the work related to this issue is $21,798 excluding GST. Mr Tuffin is not qualified to make that assessment. It appears that the figure was calculated by others. If so, the party that undertook the analysis and did the calculation should be the party that gives evidence about it.

• [49] I accept the submission on behalf of CNP that it is not credible that this work resulted in fees of only $21,798, given the extent of the documentary evidence produced and the legal arguments made.
• [50] Thirdly, the defendants did not file their application for strike-out until after discovery had been completed. Discovery was no doubt a very expensive exercise. However, the documents that established an abuse of process were communications between the parties. Those documents were available to the defendants before discovery was completed. The defendants could have made their application for strike-out before discovery.

• [51] This is an appropriate case for increased costs. As a starting point, I accept the defendants’ calculation of costs on a 2B and 2C basis as set out in the attached schedule, produced by counsel for the defendants. The discovery exercise warrants 2C costs. The total costs calculated on a 2B and 2C basis is $88,191.

• [52] The defendants’ walk away offer came too late in the proceeding to be given any weight. CNP’s choice to add director and employee defendants did not materially alter the costs incurred.

• [53] I consider that an uplift of 100 per cent is appropriate considering:

(a) the dominant improper purpose; and

(b) the actual legal costs incurred by the defendants.

• [54] This results in an award of costs of $176,382 and disbursements of $10,883.47.

Should costs be ordered against Mr Priscott as a non-party?

Legal principles

• [55] The Court has a broad discretion to make an order for costs against a non-party, under either r 14.1 of the HCR or its inherent jurisdiction.³⁸

³⁸ Wagner v B Property Group Ltd [2024] NZHC 1305 at [14].

• [56] In S H Lock (NZ) Ltd v New Zealand Bloodstock Leasing Ltd, the Court of Appeal affirmed the principles relevant to exercising that discretion, as outlined by the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2):³⁹

(a) cost orders against non-parties are exceptional in the sense that they are outside the ordinary class of cases where parties pursue claims for their own benefit and at their own expense;

(b) the ultimate question in any exceptional case is whether in all the circumstances it is just to make the order, thereby requiring a fact specific inquiry;

(c) as a general rule, third party litigation funders are only liable for costs where they not only fund proceedings but substantially control it or “at any rate [are] to benefit from them” — that is because the funder is gaining access to justice for its own purposes and is in effect the real party to litigation;

(d) the most difficult cases are those where non-parties fund receivers or liquidators in litigation which is designed to advance the funders’ own financial interests — in that case, again as a general rule, the funder pursuing its own interests should not be able to escape without risk to liability for costs if the proceeding fails.

• [57] The discretion will generally not be exercised against “pure funders” who do not stand to benefit from the litigation.⁴⁰ However, where a non-party not only funds the proceeding but also substantially controls the proceeding, or at any rate is to benefit from it, justice may require that they pay the successful party’s costs.⁴¹ That is because the non-party is regarded as the “real party”.⁴²

• [58] A director of a closely held company engaged in litigation will often have a personal interest in the proceeding because the benefits derived by the company will likely be indirectly derived by those who own and control the company.⁴³ They can likewise be said to have funded the litigation, because such a company will almost always fund its litigation with either its own funds applied to the litigation by direction of those who control it, or with advances from them.⁴⁴

³⁹ S H Lock (NZ) Ltd v New Zealand Bloodstock Leasing Ltd [2011] NZCA 675 at [14], citing Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145 at [25].

⁴⁰ Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2), above n 39, at [25].

⁴¹ At [25].

42. Minister of Education v H Construction North Island Ltd (in rec and liq) [2019] NZHC 1459, (2019) 24 PRNZ 549 at [43].

⁴³ Kidd v Equity Realty (1995) Ltd [2010] NZCA 452 at [17].

⁴⁴ At [17].

• [59] However, it is not enough that the non-party is a major shareholder or dominant director in a company which brings a proceeding and is involved in funding it.

Something additional is normally required to secure a non-party costs award.⁴⁵

• [60] In Kidd v Equity Realty (1995) Ltd, William Young P suggested that the additional requirement in that case might have been satisfied if:⁴⁶

(a) there was any relevant impropriety on behalf of the non-party director; or

(b) the director was not acting in the interests of the company but rather in his or her own interests, and thus was the real party.

• [61] In Capital Produce Ltd v Brooklyn Bar and Bistro Ltd, Associate Judge Johnson suggested non-party costs orders should be made sparingly, observing that an order may be more appropriate where the party against whom the award would otherwise be made may be unable to pay it.⁴⁷

• [62] Bad faith or impropriety are not a prerequisite for an order for non-party costs.⁴⁸ However, conduct of this nature may be a persuasive reason for exercising the discretion.⁴⁹

The defendants’ arguments

• [63] The defendants seek costs against CNP and Mr Priscott, as a non-party, jointly and severally. The defendants rely on:

(a) my finding that CNP’s predominant improper purpose for commencing the proceeding was to further Mr Priscott’s goal to acquire Maat’s business interests;⁵⁰

⁴⁵ Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2), above n 39, at [26].

⁴⁶ Kidd v Equity Realty (1995) Ltd, above n 43, at [16].

⁴⁷ Capital Produce Ltd v Brooklyn Bar and Bistro Ltd [2018] NZHC 2917 at [4].

⁴⁸ Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2), above n 39, at [33].

⁴⁹ Poh v Cousins & Associates HC Christchurch CIV-2010-409-2654, 4 February 2011 at [36].

⁵⁰ CNP Holdings Ltd v Central Park Property Investment Ltd, above n 1, at [86].

(b) financial information provided by CNP when security for costs was in issue that indicates CNP had negative equity of $3,554 as at 31 March 2022; and

(c) Mr Priscott’s role as the sole director of CNP and the controlling mind behind the litigation, which was for his benefit.

The arguments on behalf of Mr Priscott

• [64] Counsel for CNP submits that there is no evidence to suggest that CNP will not pay the defendants’ costs. Mr Priscott has filed an affidavit in support of CNP’s submissions on costs, averring that he did not personally fund the proceeding.

Analysis

• [65] Mr Priscott was the driving force behind this proceeding. In the judgment, I found that the dominant purpose of the proceeding was to further Mr Priscott’s goal of acquiring Maat’s business interests.⁵¹ If Mr Priscott had achieved that goal, then Maat’s business interests may have been acquired by CNP or other entities controlled by Mr Priscott.

• [66] Although Mr Priscott says that he did not personally fund the proceeding, he has not disclosed how CNP has funded it. He did not update the Court on CNP’s financial position. The latest financial information available from CNP suggests that CNP was insolvent on 31 March 2022. Mr Priscott did not aver that CNP is able to meet a substantial award of costs.

• [67] I am satisfied that Mr Priscott is the “real party” that drove the proceeding. The interests of justice require that he should meet an adverse costs order if CNP cannot. This is not solely because of the control that Mr Priscott exerted over the proceeding. The additional factor required to secure a non-party costs award is that Mr Priscott directed CNP to bring the proceeding to benefit Mr Priscott’s broader commercial interests, and he did so improperly.

⁵¹ At [86].

Orders

• [68] The plaintiff and Craig Nathen Priscott shall, jointly and severally, pay costs to the defendants, collectively, of $176,382.00 and disbursements of $10,883.47.

Associate Judge Brittain