Consult Recruitment Limited v Lloyd - [2025] NZHC 434

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000276

[2025] NZHC 434

BETWEEN
CONSULT RECRUITMENT LIMITED

Applicant

AND

RICHARD ALBERT LLOYD

Respondent

Hearing: (On the papers)

Counsel:

A T Grant and A M Kamphorst for Applicant

H Waalkens KC and S R Courtney for Respondent

Judgment:

10 March 2025

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 10 March 2025 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Kiely Thompson Caisley, Auckland
Wotton Kearney, Wellington

Counsel: A T Grant, Auckland
H Waalkens KC, Auckland

CONSULT RECRUITMENT LTD v LLOYD [2025] NZHC 434 [10 March 2025]

[1] On 20 February 2025, the Court granted Consult Recruitment Limited’s (Consult’s) application for interim relief. Costs were reserved to be dealt with by way of memoranda. The parties have now exchanged costs memoranda.

[2] Consult seeks indemnity costs in the sum of $46,860 exclusive of GST. In the alternative it seeks an uplift from scale costs calculated at 75 per cent, which it calculates would lead to a figure of $29,486.63. It also seeks disbursements of $950.

[3] On behalf of Mr Lloyd, Mr Waalkens KC submits the scale costs calculated on a 2B basis for one counsel would support an order of $9,082. No issue is taken with the disbursements claimed of $950.

Principles and jurisdiction

[4] The principles in relation to costs are established by Part 14 of the High Court Rules 2016 and relevant authorities.

Preliminary points

[5] Mr Waalkens took issue with Consult’s claim for item 30, (preparing affidavits by analogy). He submitted item 30 applied where a substantive trial was required but proceeded on the basis of affidavits instead of a viva voce hearing. I agree that item 30 applies to such a situation. However, there is no direct provision for the preparation of affidavits on an interlocutory application and where, as in a case of this nature, the affidavit evidence is crucial, the basic allowance of 0.6 days for filing the application itself is insufficient. Rule 14.7(b) provides for an allowance by analogy. Given the hearing was less than half a day, I consider an allowance of 50 per cent that item 30 provides for is appropriate in this case.

[6] Mr Waalkens also submitted there should be no allowance for second counsel. I agree that on an application of this nature there was no need for second counsel.

Consult’s application for indemnity costs

[7]Rule 14.6(4) provides:

The court may order a party to pay indemnity costs if—

(a)the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or

(b)the party has ignored or disobeyed an order or direction of the court or breached an undertaking given to the court or another party; or

(c)costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 434
Decision Date: 10 March 2025

CaseChat Overview and Summary

Consult Recruitment Limited sought interim relief from Richard Albert Lloyd in the High Court of New Zealand, Auckland Registry. The relief was granted on 20 February 2025, with the costs reserved for later determination. Consult sought indemnity costs of $46,860 exclusive of GST or, alternatively, an uplift of 75 per cent from scale costs, resulting in $29,486.63, along with disbursements of $950. Lloyd, on the other hand, argued that scale costs calculated on a 2B basis for one counsel, which amounted to $9,082, were sufficient, with no objections to the disbursements claimed. The Court examined the principles regarding costs as established by Part 14 of the High Court Rules 2016 and relevant authorities, alongside preliminary points raised by the counsels. The Court determined that an appropriate allowance for preparing affidavits by analogy was 50 per cent, and there was no need for second counsel on this interlocutory application. The Court found that Lloyd’s conduct did not warrant indemnity costs, as his position, although ultimately wrong, was not vexatious or improper enough to meet the threshold required for such costs. However, Lloyd’s failure to accept a reasonable offer of settlement justified an increased award of costs. The Court concluded that an uplift of 50 per cent of the scale costs was appropriate in this case.

The Court ordered that Consult Recruitment Limited recover $20,793 in costs (calculated as 5.8 days x $2,390 x 150%) from Richard Albert Lloyd, along with disbursements of $950. This decision was based on Lloyd’s unreasonable refusal to accept a reasonable offer of settlement and his conduct contrary to the terms of the agreement he had made, which justified an uplift in the costs awarded.

Orders