DHC Assets Limited - [2023] NZHC 771

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-307

[2023] NZHC 771

UNDER The Companies Act 1993

BETWEEN

DHC ASSETS LIMITED

Plaintiff

AND

ANTONY IVO ARNERICH

Defendant

Hearing: On the papers

Counsel:

F J Thorp and L J Turner for Plainitff

J D McBride and A J Steel for Defendant

Judgment:

5 April 2023

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 5 April 2023 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Duthie Whyte, Auckland Doug Cowan, Auckland

DHC ASSETS LIMITED v ANTONY IVO ARNERICH [2023] NZHC 771 [5 April 2023]

[1] This judgment relates to the plaintiff DHC Assets Limited’s (DHC) application for increased costs following the judgment delivered on 13 June 2022 in which the plaintiff succeeded in its claim against the defendant for time-related costs and contractual interest thereon.1 At the conclusion of that judgment I noted that DHC as the successful party is entitled to an award of costs, and I directed the parties to file and serve costs memoranda, following which I would determine the award of costs to DHC on the papers.2

[2] In their costs memorandum counsel for DHC seek an award of costs and disbursements totalling $86,051.87. That sum being comprised of scale costs of
$31,428.50 uplifted by 50 per cent to $47,142.75, and disbursements totalling
$39,549.12.3

[3] The defendant, Mr Arnerich, accepts the plaintiff’s claim for disbursements. However, Mr Arnerich disputes a number of the costs steps claimed by the plaintiff. He submits that the appropriate scale 2B costs calculation is $17,208 and therefore the total costs, together with disbursements, is $56,757.12.

The plaintiff ’s submissions

[4] Counsel for the plaintiff notes that in the previous costs judgment delivered on 29 April 20204 the Court awarded DHC a 50 per cent uplift of scale costs in relation to all steps in the proceeding in recognition of the manner in which the defendant conducted the proceedings which resulted in the plaintiff and its legal representatives spending more time than would otherwise have been required on issues of pleading, discovery, trial preparation and the conduct of the trial itself.5 A further factor justifying increased costs was the defendant’s rejection of a settlement offer without reasonable justification.

[5] The plaintiff submits that the reasons identified by the Court in its decision awarding a 50 per cent uplift of scale costs, also apply in relation to the plaintiff’s

1      DHC Assets Ltd v Arnerich [2022] NZHC 1381 at [128] [13 June 2022 judgment].
2 At [129].
3      The plaintiffs schedule contains an incorrect total for the disbursements of $38,909.12.
4      DHC Assets Ltd v Arnerich [2020] NZHC 1133 [29 April 2020 costs judgment].
5      At [56]–[66].

costs in relation to the hearing on 13 and 14 December 2021 and matters covered in the judgment delivered on 13 June 2022.

[6] The plaintiff submits that although the matters remitted back to the High…

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 DHC Assets Limited

Details

AGLC: DHC Assets Limited [2023] NZHC 771
Case: [2023] NZHC 771
Decision Date: 5 April 2023

CaseChat Overview and Summary

The case of DHC Assets Limited v Anthony Ivo Arnerich involved a claim by the plaintiff, DHC Assets Limited, for increased costs following a successful judgment against the defendant, Arnerich, for time-related costs and contractual interest. The plaintiff sought an award of costs and disbursements totalling $86,051.87, comprising scale costs uplifted by 50 per cent and disbursements. Arnerich accepted the plaintiff’s claim for disbursements but disputed a number of the costs steps claimed by the plaintiff. Arnerich argued that the appropriate scale 2B costs calculation was $17,208, making the total costs, together with disbursements, $56,757.12.

The legal issues before the Court were whether the plaintiff was entitled to an uplift in costs due to the defendant’s conduct and, if so, the appropriate amount of that uplift. The Court noted that in a previous costs judgment, it had awarded DHC a 50 per cent uplift of scale costs in recognition of the defendant’s conduct. The Court also considered the defendant’s repeated challenges to the scope of the issues remitted back to the High Court, his rejection of a settlement offer without reasonable justification, and his refusal to accept the binding nature of the Adjudicator’s Determination.

The Court found that the defendant’s failure to accept several settlement offers without reasonable justification contributed unnecessarily to the time and expense incurred by the plaintiff. The Court found the settlement offers to be objectively and patently reasonable and justified awarding the plaintiff an uplift of 50 per cent of scale 2B costs. The Court disallowed certain costs steps claimed by the plaintiff but allowed the plaintiff’s claim for disbursements. The Court ordered the defendant to pay costs to the plaintiff in the sum of $79,880.37, comprising legal costs of $40,331.25 and disbursements of $39,549.12.

Orders