Detection Services Limited v Pickering - [2021] NZHC 4322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-003135

[2021] NZHC 4322

BETWEEN
DETECTION SERVICES LIMITED

First Plaintiff

DETECTION SOLUTIONS LIMITED

Second Plaintiff

DETECTION SERVICES PTY LIMITED
Third Plaintiff

DETECTION SOLUTIONS PTY LIMITED

Fourth Plaintiff

STEPHEN CARL JOHN SIMMONS
Fifth Plaintiff

AND

CHRISTOPHER LORRAINE PICKERING

First Defendant

…/cont

Hearing: On the papers

Appearances:

M Corlett QC and R Butler for the Plaintiffs G B Lewis and S Zellman for the Defendants

Judgment:

13 December 2021

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Monday, 13 December 2021 at 4:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

DETECTION SERVICES LIMITED v PICKERING [2021] NZHC 4322 [13 December 2021]

AQATAR LIMITED
Second Defendant

JAKE VAN DER PEYL
Third Defendant

Solicitors: MacKenzie Elvin Law, Tauranga
Grimshaw & Co, Auckland

Counsel:M Corlett QC, Auckland R Butler, Auckland

[1] This longstanding claim is now complete. On 17 April 2020, the Supreme Court refused leave sought by the defendants1 to appeal against the liability judgment of the Court of Appeal dated 21 November 2019,2 in which the Court of Appeal overturned a liability judgment of the High Court dated 14 December 2018.3 Then on 16 August 2021,4 the Court of Appeal dismissed the defendants’ appeal against the damages judgment of the High Court dated 15 October 2020.5 All that remains is the question of costs in the High Court, both for the 6.5 day hearing on liability between 10 and 19 September 2018 and the one day hearing on damages on 21 September 2020.

[2] Following the liability judgment, I issued a costs judgment on 29 March 20196 which awarded the defendants costs of $58,537.50 and disbursements of $48,525 (totalling $107,062.50) on the basis that the plaintiffs had failed in their liability claim. The Court of Appeal overturned my liability judgment directing that the proceeding be remitted to the High Court to determine the quantum of damages payable by the defendants to the plaintiffs. It also directed that costs in the High Court were to be reassessed in light of its judgment.

Plaintiffs’ submissions

[3] The plaintiffs refer to r 14.2(1)(a) of the High Court Rules 2016 which provides that the party who fails should pay costs to the party who succeeds. They submit that this principle prevails in the present case, particularly in light of the earlier costs judgment.

[4] The plaintiffs calculate scale costs and disbursements to be $83,770, but submit that there should be an uplift to reflect their attempts to settle the damages claim. They note that the Court has jurisdiction under r 14.6(3)(b)(v) to award increased costs if a defendant has failed to accept an offer of settlement without reasonable justification.

1      Pickering v Detection Services Pty Ltd [2020] NZSC 35.
2      Detection Services Pty Ltd v Pickering [2019] NZCA 575.
3      Detection Services Ltd v Pickering [2018] NZHC 3310.
4      Pickering v Detection Services Pty Ltd

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.

Continue reading Detection Services Limited v Pickering

Details

AGLC: Detection Services Limited v Pickering [2021] NZHC 4322
Case: [2021] NZHC 4322
Decision Date: 13 December 2021

CaseChat Overview and Summary

Detection Services Limited, Detection Solutions Limited, Detection Services Pty Limited and Detection Solutions Pty Limited (the plaintiffs) brought an action against Christopher Lorraine Pickering and others (the defendants) in the High Court. The case involved a complex dispute over intellectual property and breaches of fiduciary duty, with a claim for damages. The matter reached the High Court following decisions from both the Court of Appeal and the Supreme Court.

The primary legal issue before the Court was the determination of costs associated with the proceedings. Specifically, the Court had to decide whether the plaintiffs were entitled to indemnity costs for the steps taken after their offer of settlement on 21 August 2020, which was not accepted by the defendants. The Court also needed to assess whether the defendants’ counterclaims and opposition to certain claims by the plaintiffs warranted any credit in costs.

The Court began by noting that the plaintiffs had succeeded in their claims for damages, albeit to a limited extent. The Court found that the plaintiffs' offer of settlement was reasonable and that the defendants' refusal to accept it contributed unnecessarily to the time and expense of the proceeding. As such, the Court ordered that the defendants pay increased costs, not indemnity costs, in relation to the steps taken after the offer of settlement. The Court concluded that the plaintiffs were entitled to an uplift of 100 per cent on the scale of costs incurred post the offer of settlement.

The final orders of the Court were that the first and second defendants were to pay the plaintiffs the sum of $92,613.00 in costs, comprising $58,267.00 in scale costs up to 21 August 2020, $17,686.00 in scale costs from 21 August 2020 plus a 100 per cent uplift, and $16,660.00 in disbursements.

Orders