EBR Holdings Ltd (in liq) v van Duyn

EBR Holdings Ltd (in liquidation) and two individual plaintiffs brought an action against several defendants in the High Court of New Zealand. The first plaintiffs sought a review of the Registrar's decision on the assessment of costs in the case. The defendants had filed admissions of part at least of the claims. However, the first and second plaintiffs’ claim in relation to the third and fourth causes of action failed, and the first plaintiff also failed in respect of the fifth and sixth causes of action. Similarly, the first and second plaintiffs failed in respect of the seventh cause of action. Heath J awarded one set of costs and disbursements to be paid by the defendants on a joint and several basis, to be fixed by the Registrar. The first plaintiffs sought to review the Registrar's decision on the issue of costs. The Registrar had agreed with the first to third defendants’ approach on the calculation of costs, excluding all steps in the proceeding prior to 23 May 2016. The first plaintiff argued that the first to third defendants’ approach would render the footnote redundant and that the costs should be assessed by calculating all the costs in both the District Court and the High Court, then deducting the estimate provided in support of the wasted costs order. The court found that the Judge’s use of “deduction” sat more comfortably with the first plaintiff’s approach. The court also found that the Registrar was not open to make a direction for second counsel in the absence of any such direction by the Judge. Finally, the court found that it was open for the Registrar and for the Court at this stage to direct that all disbursements reasonably incurred, even those incurred prior to the wasted costs order, should be included in the final calculation.

The court allowed the application to review the Registrar’s decision in relation to the correct approach to the calculation of costs and directed the Registrar to seal costs on the basis calculated by the plaintiff, excluding costs in the District Court. The application to review the Registrar’s decision in relation to the allowance for second counsel issue was dismissed. The Registrar was also directed to include in the final costs award disbursements incurred in this Court prior to 23 May 2016. The first plaintiff was to have costs on a 2B basis for this review.