Blomfield Consulting Limited v Lipsham Investments Limited

[2025] NZHC 1956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000972

[2025] NZHC 1956

BETWEEN

BLOMFIELD CONSULTING LIMITED

Plaintiff

AND

LIPSHAM INVESTMENTS LIMITED

Defendant

On the papers

Counsel:

N S Tabb for the Plaintiff

B J Burt and E Walker for the Defendant

Judgment:

16 July 2025

JUDGMENT OF VAN BOHEMEN J

[on costs]

This judgment was delivered by me on 16 July 2025 at 2:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Counsel/Solicitors:

Natalie Tabb, Auckland B J Burt, Auckland

Fyers Joyce Lawyers, Auckland

BLOMFIELD CONSULTING LTD v LIPSHAM INVESTMENTS LTD [2025] NZHC 1956 [16 July 2025]

[1]                 At approximately 3 pm on 30 April 2025, I received an application, filed without notice, from the plaintiff, Blomfield Consulting Ltd, for an interim injunction to restrain the defendant, Lipsham Investments Ltd, from taking steps to remove the plaintiff from the premises it occupied at Building F, Unit 4, 3 Orbit Drive, Rosedale, Auckland (the Premises) as it proposed to do later that day.

[2]                 By judgment issued that afternoon, I made an order on the papers restraining the defendant from taking steps to remove the plaintiff from the Premises pending further order of this Court, directed that the proceeding be called in the Duty Judge list on 7 May 2025, and reserved costs.1

[3]                 On 7 May 2025, Andrew J directed, by consent, that the proceeding be adjourned to 14 May 2025 and that the order I made should continue until further order of the Court.2

[4]                 On 13 May 2025, Harvey J directed, by consent and without a hearing, that the proceeding be further adjourned to 20 May 2025.3

[5]                 By memorandum dated 20 May 2025, counsel for the plaintiff advised that the defendant had served a notice under the Property Law Act 2007 (the PLA) terminating the lease of the Premises and further advised that the parties had agreed the plaintiff would vacate the premises by 15 June 2025 at the latest (the PLA notice).

[6]                 By minute dated 21 May 2025, Walker J, by consent and without a hearing, directed that the order I made on 30 April 2025 be discharged by 15 June 2025 and made timetable directions for costs memoranda to be filed.4

1      Blomfield Consulting Ltd v Lipsham Investments Ltd [2025] NZHC 1021.

2      Blomfield Consulting Ltd v Lipsham Investments Ltd HC Auckland CIV-2025-404-000972, 7 May 2025 (Minute of Andrew J).

3      Blomfield Consulting Ltd v Lipsham  Investments  Ltd  HC  Auckland  CIV-2025-404-000972, 13 May 2025 (Minute of Harvey J).

4      Blomfield Consulting Ltd v Lipsham  Investments  Ltd  HC  Auckland  CIV-2025-404-000972, 21 May 2025 (Minute of Walker J).

[7]                 Despite the absence of any substantive hearing, by memorandum dated 26 May 2025, counsel for the plaintiff, Ms Tabb, advises that scale costs, on a 2B basis, come to $8,126.00 but submits that the Court should order the defendant to pay:

(a)either indemnity costs of $16,427.75; or

(b)$12,189, being scale costs with a 50 per cent uplift; and

(c)disbursements of $825.03.

[8]                 The asserted justification for indemnity or increased costs is that the defendant acted unreasonably by threatening to remove the plaintiff from the Premises with a few days’ notice, thereby necessitating the need for injunctive relief, and by declining an offer by the plaintiff to move out by 25 May 2025. The memorandum also suggests the defendant’s unreasonable behaviour included a delay in serving the PLA notice, which was the “correct” course to have taken and had been brought to the defendant’s attention by counsel for the plaintiff.

[9]                 Despite the absence of any determination in favour of the defendant, by memorandum dated 9 June 2025, counsel for the defendant, Mr Burt, opposes costs being awarded to the plaintiff and says the defendant should be awarded costs of

$10,020 (excluding GST). These claimed costs are not based on the scale in the High Court Rules 2016 (the Rules) but are actual costs billed or yet to be billed to the defendant. The asserted justification is that the plaintiff failed to disclose material information in the affidavit filed in support of their application for interim relief, that the defendant had a good arguable basis for requiring the plaintiff to vacate the premises by 30 April 2025 and that it  had  acted  pragmatically  in  issuing  the  PLA Notice after learning at the call on 7 May 2025 that the plaintiff’s application could not be heard before early June 2025.

[10]              Counsel for both parties have filed further memoranda that respond to the points each has made but do not materially advance matters.

Applicable principles on costs

[11]              As stated by the Supreme Court in Manukau Golf Club Inc v Shoye Venture Ltd and by the Court of Appeal in Bradbury v Westpac Banking Corp, and as reflected in the Rules, it is a fundamental principle that costs follow the event.5

[12]              While all matters relating to costs are at the discretion of the Court,6 that general discretion is qualified by the specific costs rules in the Rules and is exercisable only in situations not contemplated or not fairly recognised by the Rules. Ordinarily, the loser pays the winner’s costs according to the scale set out in the Rules.7 The scale reflects the complexity and significance of the proceeding and is assessed at two-thirds of the daily rate considered reasonable in relation to the proceeding.8

[13]              In the circumstances provided for under r 14.6(3) and (4), the Court may either make an order for increased costs or an order for indemnity costs.

Application of principles to current proceeding

[14]              In the present case, there has been no determination by the Court as to the merits of the plaintiff’s application or the defendant’s opposition—which was never filed. The order made on 30 April 2025 was to preserve the position pending a hearing of the application. There was no hearing. The parties settled with the plaintiff agreeing to vacate the premises, but for reasons separate from the proceeding. There has been no event in respect of which either party can claim to have been successful. There has been no testing of the evidence from which the Court might have drawn conclusions or inferences of unreasonableness.

[15]              In pursuing their respective applications for costs, the parties and their counsel are asking the Court to speculate about what might have been, had there been a hearing. As such, both applications are without merit.

5      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8]; Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [6]; and High Court Rules 2016, r 14.2(1)(a).

6      High Court Rules, r 14.1(1).

7      Rule 14.2(1)(a).

8      Bradbury v Westpac Banking Corporation, above n 5, at [6]; and r 14.2(1)(d).

Result

[16]The applications for costs are dismissed.

[17]Costs in this proceeding are to lie where they fall.

G J van Bohemen J