Croser v Focus Genetics Limited Partnership - [2019] NZHC 990

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-164

[2019] NZHC 990

BETWEEN
DAMIEN LEIGH CROSER and KIRSTEN LOUISE CROSER

Plaintiffs

AND

FOCUS GENETICS LIMITED PARTNERSHIP

Defendant

On the papers:

Counsel:

C M Stevens and T Mijatov for Plaintiffs S M Bisley and P J Niven for Defendant

Judgment:

8 May 2019

JUDGMENT OF CHURCHMAN J (COSTS)

Background

[1] By application dated 25 March 2019, the plaintiffs applied without notice for an interlocutory injunction in relation to sheep breeding genetic data held by the defendant in respect of sheep on the plaintiffs’ property at Kiranda, South Australia.

[2] On 29 March 2019, the Court issued an interim injunction although it was not precisely in the same terms that the plaintiffs had sought. Costs in relation to the interim injunction application were reserved.

[3] On 11 April 2019, the plaintiffs lodged an interlocutory application on notice for the determination of a preliminary question before trial. That application related to an issue that had been identified by the Court in its 29 March decision as being a

CROSER & ANOR v FOCUS GENETICS LIMITED PARTNERSHIP (COSTS) [2019] NZHC 990 [8 May 2019]

matter, central to these proceedings, which the Court would ultimately be required to resolve.

[4] The application for a hearing on the preliminary question came before Clark J on 15 April 2019 and she issued a minute on 16 April 2019. The minute set a timetable for the filing of a notice of opposition and affidavits in support, and reply affidavits by the plaintiffs, together with synopses of submission.

[5] The defendant complied with the timetable, filing a notice of opposition dated 18 April 2019, together with affidavits from Gavin Foulsham, Alastair McMechan and Kate Brabin.

[6] The notice of opposition relied on a number of grounds including overlap between the proposed issue and other issues the Court was required to deal with in the substantive hearing; a claim that resolving the preliminary question would not bring the proceedings to an end, in particular because it was said that the defendant intended to file counterclaims and that resolving the proposed question did not offer any time savings. It was submitted that in these circumstances there would be unnecessary duplication of matters such as discovery and the briefing of witnesses and that there was a risk of potential conflicting findings arising from what was suggested to be “inadvertent findings of fact at the first trial”.

Developments

[7] The plaintiffs did not file any affidavits in response and neither party filed any synopsis of submissions in relation to the application for a preliminary hearing.

[8] The plaintiffs’ Australian lawyer, Ms Despina Anagnostou, on 23 April 2019 wrote to the defendant’s solicitors as a result of issues that had been raised in the material filed by the defendant. The relevant passage in the letter says:

Our only concern is the time the preliminary question might take, in the new light of your indication…

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: [2019] NZHC 990
Decision Date: 8 May 2019

CaseChat Overview and Summary

The case of Croser v Focus Genetics Limited Partnership involved the plaintiffs, Damien Leigh Croser and Kirsten Louise Croser, seeking an interlocutory injunction against the defendant, Focus Genetics Limited Partnership, over sheep breeding genetic data. The High Court of New Zealand was tasked with determining the appropriate costs following the plaintiffs' withdrawal of an application for a preliminary hearing on a central issue in the proceedings. The plaintiffs had initially sought a preliminary hearing on one day but later withdrew the application due to concerns about insufficient time and potential complications arising from other proceedings and a possible counterclaim by the defendant. The defendant sought a 50% uplift on standard costs, arguing that the plaintiffs had unreasonably taken an unnecessary step.

The Court considered the High Court Rules, particularly HCR 14.8 and HCR 15.23, which govern costs on opposed interlocutory applications and the discontinuance of proceedings, respectively. The Court found that while the plaintiffs' initial application for a preliminary hearing was reasonable, they acted responsibly in withdrawing it when it became apparent that the hearing could not be completed within the allocated time. The Court concluded that the plaintiffs' conduct did not warrant a 50% uplift in costs, given the modest sum in dispute and the clear positions of the parties as set out in the documentation. The Court ordered the plaintiffs to pay the defendant's costs and disbursements as set out in the defendant's memorandum, minus the 50% uplift.

Orders