Cameron v Everest Central Investments Limited

[2019] NZHC 2750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1890

[2019] NZHC 2750

BETWEEN

GRAEME JOHN WESTBROOK CAMERON AND JAMES PHILLIP
TURNBULL as trustees of THE WHITBY TRUST AND WHITBYCO LIMITED
Applicants

AND

EVEREST CENTRAL INVESTMENTS LIMITED

Respondent

Hearing:

On the papers

Counsel:

T J G Allan for Applicants

J McBride and F Lupis for Respondent

Judgment:

29 October 2019

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 29 October 2019at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:           Grove Darlow & Parnters, Auckland

Green Roche, Auckland

CAMERON v EVEREST CENTRAL INVESTMENTS LIMITED [2019] NZHC 2750 [29 October 2019]

[1]    I have before me an application for costs. In my substantive judgment, I found that the case for the injunction had not been made out. I further found that while the claim from the Whitby Trust (Whitby) was on its face a difficult one, I did not agree with counsel for Everest that it was so weak it ought not to have been brought. I allowed for submissions but indicated that my view was costs on a 2B scale and disbursements in Everest’s favour would be sufficient.

[2]    Everest seeks costs on a 2C basis totalling $19,478.50. Everest submits that Band C sets out the appropriate time allocations for the substantive steps taken in opposition to the application, namely:

(a)the four substantive affidavits Everest filed in opposition to the application, including two expert witness affidavits and a planner;

(b)the “very novel” approach taken to succession in the legal claim which required detailed submissions; and

(c)the concerted and substantial amount of effort required in preparing the opposition, given the potential impact the interim orders might have had.

[3]    Everest therefore submits it is self-evident that the application required more than the normal amount of preparation for a standard on notice interlocutory application, and that the award of costs should reflect the complexity and significance of the proceeding.

[4]    Everest also seeks disbursements for the reasonable costs of its expert witnesses, totalling $9,570. Everest submits that the invoices of both experts are fully recoverable, as both charged the usual rate for an expert of their reputation and experience, in relation to an urgent and significant proceeding, and their work was specific to the proceeding.

[5]    Whitby submits that costs should follow the event in the ordinary way and that Everest should be awarded costs on a 2B basis. In response to Everest’s arguments for scale 2C costs, Whitby submits that the Court as a matter of course awards costs on a 2B basis and there is nothing in the opposition to this particular application that warrants a 2C award. Whitby disputes Everest’s claims that Band C is appropriate for each step as follows:

(a)Filing memorandum for first or subsequent case management conference or mentions hearing (step 11): this comprised three pages, and was utterly unremarkable in the circumstances, requiring nothing more than average complexity per r 14.3.

(b)Filing opposition to interlocutory application (step 23): Whitby acknowledges the evidence filed in opposition to the application was comprehensive and required a short timeframe – but it is not unusual for an interim injunction to be heard in a short timeframe and, if anything, this indicates a normal amount of time was spent in preparation. Moreover, Whitby submits the evidence of the planner (Mr Warren) was not “expert” or reasonably necessary, because he was a witness of fact and not  an expert.   Whitby says this is because     Mr Warren had worked with Mr Kumar for many years and lacked the independence that expert witnesses generally display. Whitby also submits that as it did not call evidence from a planner, Mr Warren’s evidence was not reasonably necessary.

(c)Preparation of written submissions (step 24): Everest’s submissions comprise 17 pages for a half-day hearing, and although an argument was described as “novel”, nothing in the arguments required more than a “normal” amount of preparation, particularly given the limited timeframe.

(d)Preparation of bundle for hearing (step 25): there was no obligation or expectation on Everest to prepare a bundle, and it was not so large or

cumbersome that it would have taken a “comparatively large” time to prepare.

(e)Second and subsequent counsel if allowed by court (step 27): no specific basis has been put forward by Everest to justify seeking second counsel approval. Everest’s second counsel did not separately address the Court, nor did the case cover a particularly wide range of issues or require a significant burden of document management. Costs for second counsel are not warranted in the circumstances.

[6]    Whitby also objects to the invoice pertaining to Mr Warren being claimed as a disbursement as, again, it submits Mr Warren was not an expert and his evidence was not necessary. Whitby therefore submits that costs on a 2B basis in the sum of $8,920 are appropriate.

[7]    In my view, the proceeding was not so complex or time-consuming to justify the application of Band C. In saying this, I mean no criticism of counsel in terms of the actual effort. This was not a simple case and plainly it was a matter of some importance to the respondent. But essentially for the reasons stated by Mr Allan, this was not a matter of such difficulty as to attract Band C categorisation. I do, however, consider that Mr Warren’s evidence was reasonably necessary and substantially helpful, as it served to provide the full consenting and planning matrix for me.

[8]    I am therefore satisfied that Everest should be awarded costs on a 2B basis, with disbursements, including Mr Warren’s invoice.