BOBNEV-JACKSON TRUSTEES LIMITED as trustee of the BOBNEV- JACKSON TRUST MARINA JACKSON AND MATTHEW ROBINSON …./2

[2025] NZHC 659

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-840

[2025] NZHC 659

UNDER

the Companies Act 1993

BETWEEN

BOBNEV-JACKSON TRUSTEES

LIMITED as trustee of the BOBNEV- JACKSON TRUST
First Plaintiff

MARINA JACKSON
Second Plaintiff

AND

MATTHEW ROBINSON

First Defendant

…./2

Hearing:

On the papers

Counsel:

B Norling and A Cherkashina for Plaintiffs

M Robinson, self-represented First Defendant and second-named Third Defendant

A Robinson, self-represented Second Defendant and first-named Third Defendant

No representation of Fourth Defendant

Judgment:

26 March 2025

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on Wednesday, 26 March 2025 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Norling Law Ltd, Auckland Copy to: First Defendant

Second Defendant

BOBNEV-JACKSON TRUSTEES LTD v ROBINSON [2025] NZHC 659 [26 March 2025]

ANGELA MARIE ROBINSON

Second Defendant

ANGELA MARIE ROBINSON AND MATTHEW ROBINSON AS TRUSTEES OF THE ROBINSON FAMILY TRUST

Third Defendants

ROADWORX INFRASTRUCTURE LIMITED

Fourth Defendant

[1]                This judgment determines costs in a proceeding involving a shareholders dispute between the parties.

[2]                On 26 April 2022, the parties agreed consent orders resolving all issues in the substantive proceeding. The  consent  orders  set  out  the  process  by  which  Marina Jackson, the second plaintiff (or her nominee), would buy out the shareholdings of the first to third defendants in the fourth defendant company, Roadworx Infrastructure Ltd (Roadworx). The first to third defendants (together the Robinson interests) presently own 50 per cent of the shareholdings in Roadworx. The first and second plaintiffs (the Jackson interests) own the other 50 per cent.

[3]                There were delays in the implementation of the consent orders. Of necessity, the plaintiffs sought further directions regarding the date of valuation of Roadworx’s shares. On 5 November 2024, I directed that the shareholdings be valued based on financial information up to and including 31 March 2024.1 Costs in relation to those further directions have been determined.2

[4]                The shares of Roadworx have now been valued in a valuation report finalised on 2 December 2024. The next steps in the process, as set out in the consent orders, are:

Costs

1.19Within 10 working days of the valuation being finalised, the Jackson Interests can provide written submissions to the Court as to the issue of costs.

1.20Within 10 working days of service of those submissions, the Robinson Interests may respond as to the issue of costs.

1.21Within 5 working days of service of the Robinson Interest submissions, the Jackson Interests may reply.

1.22The Court will determine costs on the papers.

[5]                The plaintiffs filed submissions on 20 December 2024. Following an extension of time for the Robinson interests, the first defendant, Matthew Robinson, and the

1      Bobnev-Jackson Trustees Ltd v Robinson [2024] NZHC 3256.

2      Bobnev-Jackson Trustees Ltd v Robinson [2024] NZHC 3764.

second defendant, Angela Robinson, have filed separate submissions in response.3 The plaintiffs filed a brief reply.

[6]                Mr Norling for the plaintiffs submits that the proceedings were unnecessary, there had been good offers of settlement which were unreasonably rejected, and the opposing parties acted vexatiously. The plaintiffs seek costs on a 2C basis against the first to third defendants increased by 100 per cent, plus disbursements.

Plaintiffs’ claim

[7]                The plaintiffs’ costs on a 2C basis  total  $127,984.50.  With  an  uplift  of 100 per cent, the amount claimed is $255,969. The calculation of costs is set out in Schedule 1 to Mr Norling’s submissions, a copy of which is annexed to this judgment.4

[8]The plaintiffs also claim disbursements of $10,637.57.

[9]                The plaintiffs submit that band C is fair and reasonable in the circumstances where the Robinson interests’ conduct (in particular, Ms Robinson’s conduct on her own behalf and on behalf of the third defendant) has resulted in a comparatively large amount of time for the conduct of the proceedings. Mr Norling draws attention to the large number of documents filed by Ms Robinson without any basis; the range of unsubstantiated allegations against the plaintiffs requiring response; the frequent failure to serve documents on the plaintiffs; and the failure to cooperate causing a delay in resolution of proceedings.

The position of the Robinson interests

Mr Robinson

[10]            Mr Robinson, who is self-represented, filed a memorandum dated 12 February 2025. His memorandum does not respond to any submissions made by Mr Norling. Instead, he seeks to “provide brief information about the ongoing dispute, the

3      Ms Robinson sought to file further costs submissions by email on 24 February 2025 and 3 March 2025, after the extension of time granted to her had expired. I directed those emails not be accepted for filing.

4      I note that the Schedule includes calculations on a 2B basis. But the claim is squarely made on a 2C basis.

attempted negotiations and attempts to settle over the years and the reasons leading to lengthy delays”. The events outlined in his memorandum from the period of 11 August 2019 to 22 February  2022  appear  to  be  an  attempt  to  distance  himself  from  Ms Robinson’s actions and reduce his culpability on costs.

[11]            I am unable to accept Mr Robinson’s contentions because the events he sets out do not mitigate his culpability either leading up to or following the settlement offers made by the plaintiffs (discussed below). In relation to the August 2019 settlement offer, he concedes it was rejected by “both defendants”. He does not proffer any explanation as to his actions around the May 2021 settlement offer (his chronology skips from March 2021 to December 2021). Events outside of the relevant timeframe is not relevant to the assessment of whether the offer was rejected without reasonable justification.

[12]Mr Robinson also says:

3.0  Due to being caught within a family trust which was structured in a   way that did not allow me to have options other than to hope Angela would come to fair and reasonable decision.

[13]            While I have sympathy for Mr Robinson’s position, the law is clear. Trustees have a duty to act unanimously.5 Mr Robinson is also named as the first defendant in the proceeding in his personal capacity. As an unsuccessful party, he is liable to pay costs to the party who succeeds.6 Accordingly, costs will be awarded against the first to third defendants on a joint and several basis.

Ms Robinson

[14]            Ms Robinson, also self-represented, filed a memorandum dated 20 February 2025.  Her memorandum similarly does not respond to any submissions made by   Mr Norling. The thrust of her memorandum is captured by the excerpt below:

5      Trusts Act 2019, s 38.

6      High Court Rules 2016, r 14.2(1)(a).

3.REQUEST FOR COURT’S DETERMINATION OF COSTS

3.1        Given that Ms. Robinson is unable to provide a specific breakdown of costs at this stage, she respectfully requests that the Court determines the appropriate amount of costs based on the principles set out in case law and the nature of the proceedings.

3.2        Ms. Robinson is prepared to serve case law and legal principles to assist in the Court’s determination of a reasonable sum for the costs incurred in this matter.

4.CONCLUSION

4.1        Ms. Robinson respectfully requests that the Court make a determination regarding the appropriate costs for this matter.

[15]            I have therefore taken Ms Robinson’s position to be that she abides by the judgment of the court in relation to the costs award.

Scale costs – Discussion

[16]            The determination of what is a reasonable time for a step is made by reference to r 14.5(2) of the High Court Rules 2016 (HCR):

(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.

[17]            The determination of a reasonable time is objective and does not necessarily reflect the time actually spent by the counsel involved, or on the actual costs incurred by the party claiming costs.7 Conduct of the type referred to by Mr Norling, that is, conduct of the party opposing costs which contributed unnecessarily to the time of the proceeding, is better dealt with under r 14.6 of the HCR for increased costs.

[18]            A more appropriate indicator of reasonable time is whether the complexity of facts or issues for a particular step objectively requires a comparatively large amount of time. For example, the preparation of written submissions may require a

7      Rule 14.2(1)(e).

comparatively large amount of time for the formulation of legal arguments, without necessarily resulting in lengthy submissions.8

[19]            This proceeding, despite its prolonged nature, is not an overly complicated one. I have reviewed the steps claimed in Schedule 1 and only item 24 (preparation of written submissions dated 19 June 2019) is justifiable at band C. That step, involving the seeking of interim orders to safeguard Roadworx, required submissions as to the background of the dispute in some detail at a very early stage of the proceeding.

[20]The remainder of the steps claimed are to be calculated on a band B basis.

Increased costs – Discussion

[21]            The plaintiffs seek an uplift on scale costs of 100 per cent on the basis that the Robinson interests contributed unnecessarily to the time or expense of the proceeding or step in it by:

(a)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under r 14.10 or some other offer to settle or dispose of the proceeding;9 and/or

(b)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.10

[22]            The principles relating to an award of increased costs on the basis of failure to accept an offer made without prejudice save as to costs is succinctly set out by Katz J as follows:11

[30] A successful Calderbank offer does not of itself give rise to an entitlement to increased or indemnity costs, as this remains at the Court’s discretion. … The assessment of whether increased costs should be awarded,

8      Minister of Education v James Hardie New Zealand [2018] NZHC 2960 at [16]. Although Fitzgerald J’s comments were directed towards interlocutory applications, they are equally applicable to substantial proceedings.

9      Rule 14.6(3)(b)(v).
10 Rule 14.6(3)(d).

11 Weaver v HML Nominees Ltd [2016] NZHC 473 (footnotes omitted).

and the extent of any increase, can be impacted by a number of factors. These include (but are not limited to):

(a)the size of the offer relative to the actual costs of counsel;

(b)the amount of the claim;

(c)the reasonable expectations of the party that refuses the offer;

(d)the amount of preparation for trial already undertaken;

(e)whether the proceeding concerns an uncertain area of law;

(f)whether the parties were in a position to assess the merits when the offer was received;

(g)the information available to the party who receives the offer and the extent to which they can to assess the offer.

(h)the timing of the offer;

(i)the conduct of the offeror.

[23]            Mrs Jackson filed an affidavit dated 18 December 2024 in support of the plaintiffs’ costs submissions. She describes a number of unsuccessful attempts by the plaintiffs to settle the proceeding:

(a)Following a full-day mediation in August 2019, the plaintiffs made an offer dated  11  August  2019  to  purchase  the  Robinson  interests’ 50 per cent shareholding in Roadworx for $365,000 (with a $315,000 cash payment). A professional valuation obtained for the purposes of mediation dated 28 June 2019 valued 50 per cent of the shareholding at

$263,000.

(b)Following a judicial  settlement  conference  held  before  an Associate Judge in May 2021, the plaintiffs prepared and presented a Deed of Settlement to the Robinson interests. The Deed recorded an offer by the plaintiffs to purchase the Robinson interests’ 50 per cent shareholding for $325,000 (with a $297,570 cash payment). A professional valuation dated 30 April 2021 valued 50 per cent of the shareholding at $142,500 (rounded).

[24]            Mrs Jackson says that despite the offers being made at a premium, as demonstrated by the contemporaneous professional valuations, they were not accepted as a result of Ms Robinson refusing to settle. She says she offered a premium to avoid the expenses of proceeding through Court and in an attempt to salvage the company she had worked so hard to build.

[25]I consider that an uplift to scale costs is justified having regard to the following:

(a)I accept the offers were made at a significant premium in a good faith attempt to settle. Under the consent orders, the Robinson interests are to receive a purchase price of $119,500 for 50 per cent of the shareholdings. The Robinson interests would have been in a much better position had they accepted either the 2019 or 2021 settlement offer.

(b)The reasonableness of the rejection is assessed at the time the offer was made.12 Although the offer dated 11 August 2019 was early in the proceeding, the Robinson interests were well-placed to assess its reasonableness given the availability of professional valuation information and attendance at mediation.

(c)The failure to accept the settlement offers is made more unreasonable by the conduct of the Robinson interests in reaching settlement. This includes Mrs Jackson receiving a phone call during mediation from an associate of Ms Robinson threatening to “destroy” her.

(d)The Robinson interests were clearly on notice that their stance and refusal to settle would prompt an application for increased or indemnity costs.

(e)Mr Norling certifies that even if costs were to be awarded on a 2C basis increased by 100 per cent (that is, awarded as sought), it would not exceed the amount of actual costs incurred by the plaintiffs.

12     Woolf v Kaye [2018] NZHC 3196 at [65].

[26]            I acknowledge that this Court has previously awarded increases of 100 per cent where unreasonable rejection of settlement offers forms part of the overall uplift.13 However, having regard to the approach in Holdfast NZ Ltd,14 and as a matter of discretion, I will increase the costs incurred for steps after 14 August 2019 (the date of expiry for the first offer of settlement) by 50 per cent.

Additional orders

[27]            Mr Norling seeks additional orders in relation to the operation of the consent orders. He notes that the Robinson interests are indebted for the following amounts:

(a)Award of costs of $7,050.50 payable to the plaintiffs as per my judgment dated 11 December 2024.15

(b)Overdrawn current account balance of $21,759.17 payable to Roadworx.16

(c)Costs of the substantive proceeding as awarded by the Court in this judgment.

(the total of the above is referred to as Robinson Interests Debt).

[28]            Mr Norling notes that Ms Robinson is claiming financial hardship and accordingly he submits there are serious concerns over her ability to pay. He seeks the following orders:

(a)the purchase price ($119,500) is to be deducted from the Robinson Interests Debt; and

13 For example, see Wayne Graham Realty Ltd v Brook [2016] NZHC 1135; O’Brien and McCaw Lewis Trustees Ltd (as trustees of the O’Brien Family Trust) v Modern Built Investments Ltd [2021] NZHC 1203; and Detection Services Ltd v Pickering [2021] NZHC 4322.

14 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [47]–[48].
15 Bobnev-Jackson Trustees Ltd v Robinson, above n 2.

16 Balance Statement of Roadworx as at 18 December 2024, exhibited in Mrs Jackson’s affidavit dated 18 December 2024.

(b)if there is still an amount payable by the Robinson Interests under the Robinson Interests Debt, this amount is to be fixed and ordered for payment by the Robinson Interests to the Jackson Interests.

[29]            Mr Norling seeks these orders on the basis of para 1.23 of the consent orders of 26 April 2022. That paragraph provides:

Sale of Shares

1.23The Robinson Interests will transfer their Shares to Mrs Jackson or   her nominee (i.e the Company) at the price determined by the valuer in the Valuation, less any amount owing by the Robinson Interests to the Company (i.e. by way of overdrawn current account, or Court ordered costs).

[30]A deduction of Ms Robinson’s overdrawn current account balance of

$21,759.17 payable to Roadworx (referred to in [27](b)] above), from the amount to be paid by the Jackson interests for the share transfer is clearly provided for in para

1.23 of the consent orders. That deduction may be made without any further orders of the Court.

[31]            However, the costs orders (the previous order referred to in [27](a)] above and the costs determined in this judgment referred to in [27](c)] above) are not “amounts owing by the Robinson Interests to the Company” as per para 1.23. They are costs awarded in favour of the plaintiffs, not Roadworx.

[32]I therefore decline to make the additional orders sought as referred to above.

[33]Mr Norling seeks one further order as follows:

a.Under paragraph 1.26 of the Consent Orders, settlement is to proceed on a day two calendar months after the Valuation. However, given the Christmas break which will result in the Robinson Interests’ submissions and the plaintiffs’ reply being filed later, this period is likely to be insufficient. In the circumstances, the plaintiffs seek that the settlement date is to be fixed to 10 working days after the issuance of the Court’s determination on costs.

[34]            While the Court is cautious to vary consent orders, particularly absent the agreement of all the original consenting parties,17 both Mr and Ms Robinson had the opportunity to respond to this request and did not do so. I will accordingly make the amendment as sought.

Summary of costs calculations

1. My costs calculations take into account the following:

(a)The steps claimed by the plaintiffs were taken (the plaintiffs properly exclude steps already accounted for).

(b)The total for 2B costs calculated by the plaintiffs as $62,259.50 is adjusted by:

(i)Allowing $7,170 instead of $3,585 for Item 24; and

(ii)calculating the amount for filing the costs memorandum at 0.4 of a day rather than one day as claimed.

(c)The resulting total of scale costs is $64,410.50.

(d)To that sum is added the amount of $23,362.25, being an increase of 50 per cent on steps after 14 August 2019.

(e)The total is accordingly $87,772.75.

(f)The disbursements sought ($10,637.57) are reasonable and were incurred for the purpose of the proceeding.

17     Macnamara v Macnamara [2022] NZHC 547 at [72]–[73], citing Stead v The Ship Ocean Quest of Arne [1995] 3 NZLR 415 (HC) at 421.

Result and orders

[36]            I make an award of $98,410.32 (comprising $87,772.75 scale costs with a   50 per cent increase after 14 August 2019 and $10,637.57 disbursements) in favour of the plaintiffs against the first to third defendants on a joint and several basis.

[37]            The settlement date is fixed as 10 working days after the date of this costs judgment.

Gordon J

SCHEDULE 1

Item	Steps taken	Allocated day or parts (2C)	Allocated day or parts (2B)	Daily recovery rate	Total (2C)	Total (2B)
1	Commencement of proceeding by plaintiff	10	3	$2,390	$23,900	$7,170
22	Filing interlocutory application dated 6 May 2019	2	0.6	$2,390	$4,780	$1,434
12	Appearance at mentions on 27 May 2019	0.2	0.2	$2,390	$478	$478
24	Preparation of written submissions dated 19 June 2019	3	1.5	$2,390	$7,170	$3,585
11	Filing memorandum dated 21 June 2019	1	0.4	$2,390	$2,390	$956
12	Appearance at mentions on 24 June 2019	0.2	0.2	$2,390	$478	$478
11	Filing memorandum dated       19 September 2019	1	0.4	$2,390	$2,390	$956
12	Appearance at telephone conference on 2 October 2019	0.2	0.2	$2,390	$478	$478
11	Filing memorandum dated       19 November 2019	1	0.4	$2,390	$2,390	$956
12	Appearance at mentions  on 26 November 2019	0.2	0.2	$2,390	$478	$478
3	Reply	2.4	0.8	$2,390	$5,736	$1,912
11	Filing memorandum dated 11 June 2020	1	0.4	$2,390	$2,390	$956

12	Appearance at mentions on 11 June 2020	0.2	0.2	$2,390	$478	$478
11	Filing memorandum dated       10 December 2020	1	0.4	$2,390	$2,390	$956
11	Filing memorandum dated       16 December 2020	1	0.4	$2,390	$2,390	$956
20	List           of documents on discovery	7	2.5	$2,390	$16,730	$5,975
11	Filing memorandum dated       12 February 2021	1	0.4	$2,390	$2,390	$956
11	Filing memorandum dated 13 April 2021	1	0.4	$2,390	$2,390	$956
12	Appearance at telephone conference on 14 April 2021	0.2	0.2	$2,390	$478	$478
11	Filing memorandum dated 13 May 2021	1	0.4	$2,390	$2,390	$956
12	Appearance at mentions on 14 May 2021	0.2	0.2	$2,390	$478	$478
30	Preparation of affidavits, list of authorities and common bundle of documents	10	5	$2,390	$23,900	$11,950
31	Additional allowance for preparation of common bundle by plaintiffs	1	0.5	$2,390	$2,390	$1,195
32	Preparation for hearing	4	4	$2,390	$9,560	$9,560
34	Appearance at hearing (26 April 2022)	1	1	$2,390	$2,390	$2,390
34	Appearance at hearing (27 April 2022)	0.5	0.5	$2,390	$1,195	$1,195

34	Appearance at hearing (28 April 2022)	0.25	0.25	$2,390	$597.50	$597.50
11	Filing memorandum dated 12 May 2022	1	0.4	$2,390	$2,390	$956
11	Filing this memorandum	1	16	$2,390	$2,390	$2,390
Total (2C)				$127,984.50
Total (2C) with 100% uplift				$255,969
Total (2B)				$62,259.50
Total (2B) with 100% uplift				$124,519