A-Ward Limited v Raw Metal Corp Pty Limited

[2024] NZHC 1165

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2773

[2024] NZHC 1165

BETWEEN

A-WARD LIMITED

Applicant

AND

RAW METAL CORP PTY LIMITED

Respondent

Hearing:

On the papers

Appearances:

S D Campbell for Applicant

C Jiang and M K Brady for Respondent

Judgment:

10 May 2024

JUDGMENT OF O’GORMAN J

[as to costs]

This judgment was delivered by me on 10 May 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:

Wynn Williams, Christchurch Tompkins Wake, Auckland

A-WARD LIMITED v RAW METAL CORP PTY LIMITED [2024] NZHC 1165 [10 May 2024]

Overview

[1]                  In a judgment dated 9 April 2024, I declined an application by A-Ward Ltd seeking an anti-suit injunction to prevent the continuation of a claim against it by an Australian company, Raw Metal Corp Pty Ltd, commenced before the Federal Court of Australia, Queensland Registry.

[2]                  Given that result, I determined that the respondent is entitled to costs and made a timetable for memoranda to be filed if agreement could not be reached between them.

Party positions

[3]                  The parties have filed a joint memorandum as to costs dated 3 May 2024 recording agreement on the calculation of scale costs on a 2B basis, being $7,648 for steps opposing the application and attending the hearing, plus disbursements of $160.

[4]However, the parties are in dispute in respect of the following:

(a)The timing of payment:

(i)The applicant’s position is that, even if the amount can be fixed now, costs should not be payable until the conclusion of the substantive matter. This is because the applicant takes the position that the costs will be claimable under the substantive causes of action, including indemnity entitlements.

(ii)In contrast, the respondent says that there are no special circumstances justifying any departure from the general principle in r 14.8 that costs of interlocutory applications are fixed when the application is determined, and payable when fixed. Even if the applicant ultimately establishes a contractual indemnity entitlement, it does not follow that this will include an ability to recoup costs for the unsuccessful interlocutory application. The respondent’s position is that an application for an anti-suit injunction that is simply not available under the

TTPA regime does not fall within the scope of any indemnity. The assessment of whether the Court has jurisdiction to grant an anti-suit injunction is not something that will be reassessed in the substantive proceeding, so this distinguishes the rationale for deferring costs in summary judgment and other similar interim contexts.

(b)The respondent also seeks additional costs for the memorandum of costs in the sum of $956 on the basis that costs on costs awards can be made.1

Legal principles

[5]                  Rule 14.8 of the High Court Rules 2016 creates a presumption that costs on opposed interlocutory applications are to be fixed by the court when the application is determined. In Chapman v Badon Ltd the Court of Appeal said:2

[12]… Apart from applications for summary judgment, the general approach to costs in respect of interlocutory applications is that they are dealt with at the time the applications are determined rather than being held over until the outcome of the proceedings is known. This reflects the fact that the merits of particular applications and the merits of the substantive proceedings are different matters.

[6]Costs on costs are unusual and the Court is reluctant to award them.3

Application to facts

[7]                  I have considered the applicant’s request to defer payment in this case. I do not consider that such deferment is appropriate in the circumstances. Awarding costs now on the basis that they are payable now does not preclude the applicant from seeking to recover them in the substantive causes of action.

1      Legler v Formannoij [2022] NZHC 1804.

2      Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 (footnote omitted).

3      Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; Barry Park Investments Ltd v Body Corporate Number 95388 [2016] NZHC 1527 at [25]; and SKP Incorporated v Auckland Council [2019] NZHC 1665 at [9].

[8]                  I agree with the respondent that the merits of any indemnity claim are separate from the general costs principle that costs should be awarded and paid when an interlocutory decision is determined. It is not clear that there is any such indemnity entitlement, nor will the substantive issues of the availability of an anti-suit injunction be revisited at the substantive hearing.

Result

[9]                  I award costs to the respondent in the agreed amounts ($7,648 for costs, plus disbursements of $160),  as set out  in the schedule to the joint memorandum dated   3 May 2024.

[10]I decline to award costs for the joint memorandum.

O’Gorman J