Bobnev-Jackson Trustees Limited v Robinson

[2024] NZHC 3764

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-840

[2024] NZHC 3764

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:

11 December 2024

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 11 December 2024 at 11 am, 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 [2024] NZHC 3764 [11 December 2024]

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 is a judgment determining the quantum of costs.

[2]        The background to the proceeding which commenced in 2019 can be stated shortly for the purpose of this costs judgment. The proceeding arose out of a shareholder dispute.

[3]        In 2022, the Court made various consent orders setting out the process by which Marina Jackson, the second plaintiff, would buy out the shareholdings of the first to third defendants in the fourth defendant company, Roadworx Infrastructure Ltd. The consent orders resolved the substantive claim.

[4]        There were delays in implementing the consent orders. The date for the valuation of the shares (which was not provided for by the consent orders) became material. The plaintiffs said that the date of valuation should be 2024. The first defendant and one of the two trustees of the Robinson Family Trust, Matthew Robinson, abided the decision of the Court. The second defendant and the other trustee of the Robinson Family Trust, Marie Robinson, took the following position:1

[11]  Ms Robinson, also acting for herself, disagrees with the plaintiffs. While she disagrees, Ms Robinson has not formally opposed the order sought by the plaintiffs. Further, despite the opportunity to file affidavit evidence in response to Mrs Jackson’s affidavit, she did not do so. Instead she has filed a large number of documents on an ongoing basis, almost all of which are irrelevant and some of which were not served on the plaintiffs. In her filings Ms Robinson mostly seeks to undermine and revisit the consent orders. She did not appear at the hearing.

[5]        On 5 November 2024 I delivered a judgment finding for the plaintiffs on the issue of the date of valuation (judgment).2 I also considered and refused to make some of the orders sought by Ms Robinson.

Costs ordered in the judgment

[6]In the judgment, I made the following orders as to liability to pay costs:

[55]      I accordingly order that the second and third defendants are jointly and severally liable to pay the costs of this application on a 2B basis to the plaintiffs.

[56]Mr Norling should file a memorandum setting out the items claimed.

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

2      Bobnev-Jackson Trustees Ltd v Robinson, above n 1.

[7]        Mr Norling, counsel for the plaintiffs, has filed a memorandum setting out the costs claimed, calculated on a 2B basis, as directed. A copy of Mr Norling’s table containing the costs calculations is annexed to this judgment as Appendix A.

[8]        After Mr Norling’s memorandum was  filed, there was an opportunity for   Mr and Ms Robinson to each file a memorandum in reply on any of the individual items claimed if they considered any items were not able to be claimed.

[9]        Ms Robinson filed a memorandum setting out her opposition to the amount of costs claimable, and sought leave to raise several other matters. Mr Robinson did not file a memorandum.

Legal principles

[10]      The award of costs and disbursements is governed by pt 14 of the High Court Rules 2016 (HCR). The Court has a broad discretion to award the costs of a proceeding.3 The purpose of an award of costs is for the unsuccessful party to compensate the successful party.4

[11]      The quantum of costs is determined by applying the appropriate category of proceeding and daily recovery rate to the time taken for each step required by the proceeding.5 The appropriate daily recovery rate for a category 2 proceeding is set under the HCR at $2,390.6 The determination of band B to a step in the proceeding means that a normal amount of time is considered reasonable for that step in the proceeding.7 The appropriate daily recovery rate and 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.8

Quantum of costs

[12]The plaintiffs claim costs of $7,050.50 calculated on a 2B basis.

3      High Court Rules 2016, r 14.1.

4      Rule 14.2(a),

5      Rule 14.2(1)(b)–(c).

6      Rule 14.3(1).

7      Rule 14.5(2)(b).

8      Rule 14.2(1)(e).

[13]      Ms Robinson opposes the quantum of costs claimed on the grounds that the costs are excessive and disproportionate given the nature of the steps taken, and accordingly the costs should be significantly reduced. In particular she says:

(a)the costs for filing of memoranda are unjustifiable considering the routine and non-complex nature of these filings;

(b)the amounts claimed for appearances at the calls are excessive given that the appearances were for a short duration and did not involve significant legal complexity;

(c)the written submissions were not complex and do not justify the claim for 1.5 days of work at a rate of $2,390 per day; and

(d)the $597.50 claimed for attendance at the relatively short hearing is excessive.

[14]With respect to Ms Robinson, her submissions are misconceived. As set out in

[6] above, in the judgment at [55] I had already made orders as to: the liability of the second and third defendants to pay costs on a joint and several basis; categorising the daily recovery rate as category 2; and setting the reasonable time for steps taken as band B. The only question that remains is whether the steps are claimable.

[15]              I have reviewed the steps claimed by the plaintiffs. They are correctly claimed by analogy with an interlocutory application.9 The steps claimed were taken and are correctly calculated according to category 2B as ordered in the judgment. Accordingly, I will make the costs award as sought by the plaintiffs.

Other matters

[16]              In her memorandum, Ms Robinson also seeks permission to raise other costs-related matters which appear to challenge the order previously made in [55] of the judgment. I refuse leave. A costs liability order has already been made.

9      Rule 14.5(1)(b).

[17]              I note for completeness that in any event, the additional matters raised  by  Ms Robinson do not assist in the consideration of which steps are claimable, for the following reasons:

(a)It is not inequitable to hold Ms Robinson accountable for costs on a joint and several basis given that it was her disagreement as to the valuation date which necessitated the filing of the present application.

(b)The Court could not have considered alternative participation options for Ms Robinson for the hearing on 31 October 2024 (which she now argues the Court should have done) in circumstances where she did not request alternative participation options.

(c)The existence of financial hardship (which Ms Robinson claims), absent any other reason, is not a sufficient consideration to justify departure from the usual principle that costs should follow the event.

(d)The plaintiffs did not pursue actions which were not required by the nature of the dispute, as claimed by Ms Robinson. It was her disagreement with the plaintiffs as to the date of valuation that required the plaintiffs to bring the matter back before the Court.

Result

[18]              I make an award of costs of $7,050.50 in favour of the plaintiffs against the second and third defendants on a joint and several basis.

Gordon J

Appendix A

Item	Steps taken	Allocated day or parts	Appropriate daily recovery rate	Total
11	Filing memorandum seeking directions dated 30 July 2024	0.4	$2,390	$956
12	Appearance at call on 12 August 2024	0.2	$2,390	$478
11	Filing memorandum dated 20 September 2024	0.4	$2,390	$956
12	Appearance at call on 14 October 2024	0.2	$2,390	$478
24	Preparation of written submissions	1.5	$2,390	$3,585
26	Appearance at hearing	0.25	$2,390	$597.50
Total	$7,050.50