Bi v Westcoast Mining Ltd

[2020] NZHC 2940

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-418-000003

[2020] NZHC 2940

UNDER

the Companies Act 1993 and Part 18 of the High Court Rules 2016

IN THE MATTER

of an application for relief under section 174 of the Companies Act 1993

BETWEEN

JIANTAO BI

Plaintiff

AND

WESTCOAST MINING LIMITED

First Defendant

AND

GOLDEN COAST HOLDING LIMITED

Second Defendant

AND

CHAO ZHANG

Third Defendant

AND

MINGHOU ZHANG

Fourth Defendant

Hearing:

Determined on the papers

Counsel:

R A Hearn for Plaintiff

J V Ormsby for Third and Fourth Defendants

Judgment:

6 November 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 6 November 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BI v WESTCOAST MINING LTD [2020] NZHC 2940 [6 November 2020]

[1]This judgment concerns costs on interlocutory applications:

(a)by the third and fourth defendants (the defendants) that the plaintiff provide a more explicit pleading;

(b)by the defendants that the plaintiff provide particular discovery; and

(c)by the plaintiff that the defendants provide particular discovery.

[2]        I determined the applications in [1](a) and (c) in my judgment of 24 September 2020.1 The third application in [1](b) was withdrawn by the defendants on the basis that the documents sought had been provided but they would be seeking costs.

[3]        The parties have been unable to agree on costs and their counsel have submitted memoranda.

[4]        The defendants seek costs in respect of all applications on the basis that they succeeded overall on all applications. They also seek costs on filing statements of defence to the plaintiff’s amended statements of claim.

[5]        The plaintiff argues costs should lie where they fall. He asserts success was broadly equally shared on the applications that were determined in my judgment and the third application was unnecessary.

[6]There is no dispute that costs (if awarded) should be calculated on a 2B basis.

Some preliminary issues

Two applications or three?

[7]        The defendants’ applications in [1](a) and [1](b) were made in a single document dated 24 July 2020. This document was amended on 14 August 2020. There is a preliminary issue whether it is appropriate for the defendants to make costs claims for discrete applications presented in a single document.

1 Bi v Westcoast Mining Ltd [2020] NZHC 2505.

[8]        Mr Ormsby submits where more than one application is brought in the one document costs are payable on each application. He acknowledges that this will not apply to hearing costs which are payable on the actual hearing time.

[9]        I was referred to Watherston v PGW Rural Capital Ltd.2 There, PGW sought costs on four applications all included in one document. Dunningham J accepted this was appropriate and said:

[15] In this regard, I accept the plaintiff’s submission that these were four discrete applications which could have been filed in separate documents and there was no costs saving (except for the filing fee) in presenting…