Berge Bulk Shipping Pte Ltd v TPT Shipping Ltd

[2021] NZHC 670

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-89

[2021] NZHC 670

BETWEEN

BERGE BULK SHIPPING PTE LTD

Applicant

AND

TPT SHIPPING LTD

Respondent

Judgment:

(On the papers)

30 March 2021

COSTS JUDGMENT OF BREWER J

This judgment was delivered by me on 30 March 2021 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Lowndes Jordan (Auckland) for Applicant Chapman Tripp (Auckland) for Respondent

BERGE BULK SHIPPING PTE LTD v TPT SHIPPING LTD [2021] NZHC 670 [30 March 2021]

Introduction

[1]    In my Judgment of 7 October 2020,1 I directed that TPT must pay Berge’s costs. The parties have now filed memoranda. This Judgment determines the costs TPT must pay.

[2]    My Judgment decided in Berge’s favour an application for interim injunction to enforce a letter of indemnity in the context of an arrest of a ship.

Submissions

[3]    Berge submits that the appropriate costs category for the proceeding is category 3 and that although time band B is appropriate for most of the steps, time band C is appropriate for three of them.

[4]    Counsel for Berge submits also that this is a case where increased costs to the extent of 50 per cent should be awarded.

[5]    TPT submits that scale costs on a 2B basis are appropriate for all steps, that there should be no uplift and that disbursements should be limited to the filing fees for the injunction application and the sealing fee.

Discussion

[6]    Category 3 covers proceedings that because of their complexity or significance require counsel to have special skill and experience in the High Court.2 Counsel for Berge submits that category 3 should apply to its application because:

5.1This was an application for an urgent mandatory prohibitive injunction. It required counsel experienced in both shipping law and injunctive relief.

5.2There were novel points of law in New Zealand, based on English precedent.

5.3The issues were significant issues for the parties, both financially and otherwise, including as to the consequences.

1      Berge Bulk Shipping Pte Ltd v TPT Shipping Ltd [2020] NZHC 2627.

5.4The issues were complicated by the fact that they involved overseas jurisdictions. There was a complex inter relationship between the jurisdictions.

5.5This complexity and significance of the issues required counsel to have special skill and experience in this Court. Counsel of average skill and experience would not have been able to do this case justice.

[7]    Category 2 are proceedings of average complexity requiring counsel of skill and experience considered average in the High Court.3

[8]    In my view, the application for interim injunction came within category 2 because:

(a)Urgency is often present when an interim injunction is sought. It is true that the application required counsel experienced in shipping law. But that by itself does not make the proceeding complex or require counsel to have special skill and experience in the High Court. We live in an era of specialisation at the bar.

(b)There really were no novel points of law. Letters of indemnity are commonplace in shipping law. The English authorities cited were well understood and accepted. The only potentially novel point was whether this Court should assume jurisdiction.

(c)I agree the issues were significant issues for the parties. That is often the case.

(d)I agree that the issues were complicated by the fact that they involved overseas jurisdictions. I disagree that there was “a complex inter relationship between the jurisdictions”. I found the issues to be quite straightforward.

[9]    My conclusion is that for counsel with experience in shipping law the application for interim injunction was of average complexity and not requiring of counsel skill and experience beyond the average.

[10]I shall award costs on a category 2 basis.

[11]   Similarly, I consider that time band B is appropriate for all of the steps taken by Berge. There was significant work to do, and it had to be done urgently. Again, that is not uncommon with applications for interim relief. Counsel for Berge did have to liaise with overseas-based lawyers but clearly got considerable assistance from them.

[12]I consider that time band B is appropriate for the steps taken by Berge.

[13]   I will not make an order for increased costs. I do not consider that TPT contributed unnecessarily to the time or expense of the proceeding. To the contrary, the live issue was whether this Court had jurisdiction to decide Berge’s application for interim injunction. That was the only novel point in the proceeding and TPT focused on it. It was entitled to do so. TPT was not obliged to agree with Berge’s pre-hearing offer to submit to jurisdiction on conditions.

[14]   As for disbursements, I agree with counsel for TPT that filing fees for the notice of proceeding and statement of claim do not form part of the costs assessment at this interlocutory step, and should not be included.

Decision

[15]I award costs to Berge on a 2B basis. Disbursements are as indicated.

[16]   I will not go through the steps claimed and check the calculations myself. Counsel are well capable of doing that. If there is disagreement, the Registrar can fix the costs.

Brewer J