Ana Sons Limited v Foodstuffs North Island Limited

[2025] NZHC 1862

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-003079

[2025] NZHC 1862

BETWEEN

ANA SONS LIMITED

First Plaintiff

MSAA & SONS LIMITED
Second Plaintiff

AND

FOODSTUFFS NORTH ISLAND LIMITED

Defendant

Hearing:	On the papers
Counsel:	M Freeman for Plaintiffs I J Thain for Defendant
Judgment:	9 July 2025

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 9 July 2025 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date: ……………………………….

ANA SONS LTD v FOODSTUFFS NORTH ISLAND LTD [2025] NZHC 1862 [9 July 2025]

Introduction

[1]    In my substantive judgment of 20 March 2025, I declined the plaintiffs’, ANA Sons Ltd and MSAA & Sons Ltd, application for an interim injunction restraining the defendant, Foodstuffs North Island Ltd (FSNI), from terminating franchises under franchise agreements.1

[2]This judgment contains my decision on costs.

[3]    In my substantive judgment, I indicated that FSNI would be entitled to costs on a 2B basis plus disbursements. Counsel have conferred on costs and agree that category 2 costs are appropriate.2 However, there is dispute as to the specific time allocations for steps 23 and 24.

Submissions

[4]FSNI seeks the following:

Cost item (sch 3 to the Rules)	Time allocation (r 14.5)
12. Teleconference with Peters J	0.2 (applying band A)
23. Filing opposition	2 (applying band C)
24. Preparation of written submissions	3 (applying band C)
26. Appearance at hearing	0.5 (applying band B)
29. Sealing judgment	0.2 (applying band B)
Total	5.9

[5]    The plaintiffs take no issue with items 12, 26, and 29. However, they object to items 23 and 24 being allocated as band C.

Relevant legal principles

[6]    Under the High Court Rules 2016 (the Rules), the allocation of bands (A, B, and C) depends on the reasonable time taken:

1      ANA Sons Ltd v Foodstuffs North Island Ltd [2025] NZHC 575.

2      Category 2 proceedings are “Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court”; see High Court Rules 2016, r 14.3.

14.5     Determination of reasonable time

…

(2)       A determination of what is a reasonable time for a step under subclause (1) must be made by reference—

(a)to band A, if a comparatively small amount of time is considered reasonable; or

(b)to band B, if a normal amount of time is considered reasonable; or

(c)to band C, if a comparatively large amount of time for the particular step is considered reasonable.

[7]    This Court in TSB Bank Ltd v Dollimore (No 2) provided the relevant considerations for assessing reasonable time:3

[8]    The assessment of a “normal” vis a vis a comparatively small or large amount of time in a step may, depending on the step, relate to such factors as:

(a)the scope of the facts that are material to the issue;

(b)the degree of difficulty in identifying the law relevant to the issue; and

(c)the number and complexity of the arguments by both sides applying the law to the facts.

[8]                 The onus is on the party seeking costs at band C to demonstrate “why ‘a normal amount of time for the particular step’ would be insufficient”.4

Analysis and decision

1. FSNI have provided the following to justify seeking Band C:

In terms of High Court Rule 14.5(2)(c), a comparatively large amount of time was reasonable for filing the defendant’s opposition to the injunction application and for preparing the defendant’s written submissions in opposition. In addition to the notice of opposition, four substantial affidavits were prepared. There were many substantial exhibits. The written submissions extended to 15 pages, rather than the usual 10 (as was permitted by his Honour Gault J’s pre-hearing directions made on 12 December 2024).

3      TSB Bank Ltd v Dollimore (No 2) [2016] NZHC 253. Also see Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544 at [35]; and Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400 at [161], in which the Court of Appeal held that the party seeking band C must show why relevant steps in the proceeding should be a Band C classification.

4      Paper Reclaim Ltd v Aotearoa International Ltd, above n 3, at [35]

[10]              In response, the plaintiffs submit that it is not unusual for multiple affidavits to be filed in support of an interlocutory application and that, while lengthy, the affidavits were not particularly complex. They also submit that the case was not complex and the length of the submissions arose from the plaintiffs consenting to additional pages which, they say, saved time.

[11]              I am not satisfied the defendant has demonstrated why “a normal amount of time for the particular step” was insufficient for the preparation of their opposition and submissions. I reject the submission that, while band B would generally apply for “normal interlocutory applications”, a “comparatively large amount of time was reasonable” for the steps taken in the context of an interlocutory injunction. The Rules do not distinguish between applications for interlocutory injunctions and all other interlocutory applications. As TSB Bank Ltd v Dollimore (No 2) makes clear, the fundamental consideration is not what type of application is present, but whether the party seeking costs can demonstrate that the facts, law, and necessary arguments reasonably required a “comparatively large amount of time”.5

[12]In applying the considerations set out in TSB Bank Ltd, I find:

(a)the scope of the facts material to the issue was relatively constrained. While there is a degree of complexity to the factual background to the proceedings, it is not remarkable or out of the ordinary;

(b)the law relevant to the issue was not complex. The law concerning interim injunctions is well-settled and requires the Court to have regard to three relatively straightforward considerations;6

(c)the number and complexity of arguments advanced were not particularly remarkable. Certainly, the arguments put in written submissions were lengthy,7 but as this Court in Minister of Education v James Hardie New Zealand held, “it is not the length of the written submissions per se which is determinative, but the complexity of the

5      See above n 3.

6      See Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) at 142, as cited in Intellihub Ltd v Genesis Energy Ltd [2020] NZCA 344 at [23].

7      For completeness, I note that a third of the defendants’ written submissions was devoted to a chronology.

issues to be determined and the time involved in preparing and formulating the arguments reflected in those submissions.”8 The arguments advanced were not remarkably complex and the time required could not reasonably be classified as more than “normal”.

[13]              FSNI has not satisfied me that band B is insufficient for steps 23 and 24. Accordingly, I will award costs for those steps on a 2B basis.9 The breakdown of costs is:

Cost item (sch 3 to the Rules)	Allocation	Amount
12. Teleconference with Peters J	0.2	$478
23. Filing opposition	0.6	$1,434
24. Preparation of written submissions	1.5	$3,585
26. Appearance at hearing	0.5	$1,195
29. Sealing judgment	0.2	$478
Total	3	$7,170

[14]               As to disbursements, there is a dispute regarding the $718.75 disbursement sought for “Professional fees for witnessing affidavit of Lindsay Rowles”. FSNI has not provided an explanation for how these fees arose and, as the plaintiffs point out, affidavits are often witnessed for no charge. I agree with the plaintiffs that, without further explanation, this disbursement cannot be awarded.

Result

[15]              I order that the plaintiffs are to pay the defendant, Foodstuffs North Island Ltd, costs in the sum of $7,170 plus disbursements of $143.

Order

[16]Orders accordingly.

Andrew J

8      Minister of Education v James Hardie New Zealand [2018] NZHC 2960 at [16].

9      Other than for step 12.