Commerce Commission v Elders Rural Holdings Limited

[2017] NZHC 325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001750 [2017] NZHC 325

UNDER

Sections 27, 30 and 80 of the Commerce

Act 1986

BETWEEN

THE COMMERCE COMMISSION Plaintiff

AND

ELDERS RURAL HOLDINGS LIMITED Second Defendant

Hearing:	(On the papers)
Counsel:	L Farmer and J Carlyon for Plaintiff M S Anderson for Second Defendant
Judgment:	2 March 2017

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 2 March 2017 at 3.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

DAC Beachcroft, Auckland

Copy to:            J Dixon, Auckland

THE COMMERCE COMMISSION v ELDERS RURAL HOLDINGS LTD [2017] NZHC 325 [2 March 2017]

[1]      The  Commerce  Commission  (the  Commission)  filed  an  application  for particular discovery against Elders Rural Holdings Limited (Elders). The application was ultimately not pursued.

[2]      The Commission seeks costs on the application uplifted by 25 per cent.

[3]      Elders rejects the Commission’s application for costs and says that it should be entitled to costs on the application given the Commission effectively discontinued the application.  Otherwise it says costs should be reserved.

[4]      Counsel agreed the issue could be dealt with on the papers. The file has been referred to me today.

[5]      As costs on an interlocutory application, the costs should be dealt with now rather than reserved.   I have reviewed the file and counsels’ memoranda.   I am satisfied that the application for further particular discovery was necessary given Elders’ response to the tailored discovery.  While the point made by Elders, namely that there is considerable background to the matter, is correct, once the proceedings were issued and the matter was before the Court Elders was required to comply with the order for tailored discovery.  It failed to do so in a timely fashion and the tailored discovery was, on the face of it, inadequate.

[6]      On 19 July the Commission’s solicitors wrote to Elders’ solicitors requesting that Elders file a further affidavit to confirm the steps Elders had taken to comply with its discovery obligations.  It did not do so.

[7]      It was only after the application for further and particular discovery was made by the Commission  that  Elders  provided  further  information  (in  October) which sufficiently clarified the position and satisfied the Commission’s concerns. The matter could have and should have been dealt with earlier and in a way which would have obviated the need for the application for discovery.

[8]      However I am not satisfied that any of the criteria which support an increased order for costs are made out in this case.

[9]      Both parties agree that proceedings should be categorised as category 3.  On that basis there is an order for costs in the Commission’s favour on the application on a category 3B basis together with disbursements as fixed by the Registrar.

[10]     The costs are quantified at $1,980 together with disbursements of $500, in total $2,480.

Venning J