Enviro Waste Services Limited v Remediation (NZ) Limited

[2022] NZHC 147

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001225

[2022] NZHC 147

UNDER

Part 19 of the High Court Rules 2016

IN THE MATTER

of an originating application under Part 19 of the High Court Rules

BETWEEN

ENVIRO WASTE SERVICES LIMITED

Applicant

AND

REMEDIATION (NZ) LIMITED

Respondent

Hearing:	On the papers
Counsel:	G Williams and T Lindsay for Applicant J Maassen and D Brabant for Respondent
Judgment:	10 February 2022

JUDGMENT OF WYLIE J

[As to costs]

This judgment was delivered by Justice Wylie On 10 February 2022 at 2.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/Counsel:

Lindsay & Francis/G Williams, Auckland Willis Legal, Napier/J Maassen, Wellington

ENVIRO WASTE SERVICES LTD v REMEDIATION (NZ) LTD [2022] NZHC 147 [10 February 2022]

Introduction

[1]                  I refer to my judgment issued on 1 December 2021.1 I made an order granting the plaintiff, Enviro Waste Services Limited  (ESL),  possession  of  a  property  at Mt Maunganui. I held that, as the successful party, it was entitled to its costs and reasonable disbursements. I put in place a timetable for the exchange of memoranda in that regard. I have now received those memoranda.

[2]ESL seeks costs in the sum $48,431.60, comprising $42,601.75 in costs and

$5,829.85 in disbursements.    Costs have been calculated on a 2B basis, with an allowance for second counsel.

[3]                  The respondent, Remediation (NZ) Limited (Revital), opposes ESL’s application. It accepts that the proceedings are appropriately categorised on a 2B basis but argues that various of the costs claimed are not appropriate and should not be awarded. It also challenges some of the disbursements claimed. It submits that an order for costs totalling $21,032, and disbursements of $4,517, is appropriate.

[4]                  Although I did not reserve leave in this regard, ESL has filed a memorandum in reply. It disputes the various assertions made by Revital.

Analysis

[5]                  Costs are in the discretion of the Court.2 That discretion is not, however, unfettered. It is qualified by the various costs rules – rr 14.2 to 14.10 of the High Court Rules 2016 – and falls to be exercised in accordance with established principles. These principles emerge from various decisions in the Supreme Court and in the Court of Appeal.3 The costs regime is of a regulatory character, and it is important that its integrity be maintained; there is accordingly a strong implication that the Court should apply the regime in the absence of some good reason to the contrary.

[6]                  The primary principles applying to the determination of costs are set out in    r 14.2. The party who fails with respect to a proceeding or an interlocutory application

1      Enviro Waste Services Ltd v Remediation (NZ) Ltd [2021] NZHC 3270.

2      High Court Rules 2016, r 14.1.

3      See for example Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA); and Kinney v Pardington [2021] NZCA 174.

should pay costs to the party who succeeds. An award of costs should reflect the complexity and significance of the proceeding; costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application. In so far as is possible, the determination of costs should be predictable and expeditious.

[7]                  Here, it is common ground that costs should be fixed on a 2B basis. The costs calculations made by ESL reflect the steps taken in the proceedings, and unless there is good reason to the contrary, the costs should be awarded as sought.

[8]                  Pursuant to r 14.7, the Court can refuse to make an order for costs or may reduce the costs otherwise payable under rr 14.2 to 14.5 if the nature of the proceeding or step in the proceeding is such that the time required by the party claiming costs would be substantially less than the time allocated under band A. Costs can also be reduced if some reason exists which justifies the Court refusing or reducing costs, despite the principle that the determination of costs should be predictable and expeditious.

[9]                  Here, Revital argues  that  ESL should  not  receive  costs  for  two  counsel. It submits that it is rare for second counsel to be approved in category 2 cases, and that whether or not second counsel should be certified requires an objective assessment, focused on the nature of the proceedings. ESL argues that certification for second counsel is appropriate given the volume of materials required at the hearing, and the wide-ranging issues raised by the proceeding.

[10]              I agree with Revital’s submissions as to the appropriate approach. While there was certainly a significant amount of material filed in the proceedings, that material was not particularly complex. Nor was much of it particularly relevant to what was ultimately in dispute. The volume of materials alone did not require two counsel to appear. The evidence was provided in affidavits and included in the agreed bundles. There was no requirement for any of the evidence to be led, nor for the exhibits to be produced. Submissions were filed in advance. The proceedings were of ordinary complexity and there were no exceptional features justifying the need for second counsel. I decline to certify for second counsel.

[11]              Revital disputes the costs claimed by ESL for attending case management conferences.

[12]              The claims made by ESL are in accordance with the relevant cost schedules. Revital asserts that costs claimed exceed the actual time required and the nature of the steps that had to be taken. I am not prepared to so find. Beyond the bare assertions made by Revital, there is nothing to suggest that the time required, or the steps taken, were excessive. I allow the costs claims made by ESL for the case management conferences.

[13]              Revital says that ESL claims costs associated with “a witness hearing”, even though there was only limited cross-examination of deponents, based on the filed affidavits.

[14]              I am not persuaded by Revital’s arguments. Cross-examination occurred, but only because Revital gave notice that it wished to cross-examine some of ESL’s witnesses. Up until a pre-hearing conference on 18 November 2021, Revital was maintaining that its cross-examination would be unlimited and that it would take some days to complete. It was only following the pre-hearing conference that Revital advised that its cross-examination would be limited to ESL’s application. Even this indication was relatively unhelpful, given the breadth of issues being asserted by Revital in its notice of opposition. ESL’s claims for costs associated with the cross-examination are straightforward, and arose because of Revital’s decision to cross-examine ESL’s witnesses. ESL is entitled to its costs calculated in accordance with the relevant schedules, in the usual way.

[15]              Revital argues that ESL is claiming for costs associated with four interlocutory applications as if four individual applications were made, when only two were filed dealing with relevant matters.

[16]              Again, I reject this argument. Revital made four different applications, each raising different issues and relying on different grounds. ESL had to respond to each individually, both by filing notices of opposition, and also by preparing and filing written submissions and making oral argument in regard to each. The costs sought by

ESL  cannot  be  said  to be excessive.    They are a consequence of the numerous applications made by Revital.

[17]Revital challenges two disbursements claimed by ESL.

[18]              ESL claims $586.50 for the costs associated with serving Revital. Revital argues that its solicitors were served by email and not by a process server. ESL asserts to the contrary. It says that a process server was used to serve the documents after Revital argued that service on its solicitor was inappropriate. Clearly, ESL has received an invoice from the process servers. That invoice has been made available by ESL. The disbursements associated with service are not unreasonable and appear, at least on the face of it, to have been a result of Revital’s stance in regard to service on its solicitor.

[19]              ESL also claims costs associated with the remote swearing of affidavits, as a result of the COVID-19 protocols in place at the time. ESL filed its affidavits in September 2021. At the time Auckland, where counsel and some witnesses were based, was in lockdown. It was not possible to have the affidavits sworn or affirmed in person. The affidavits were sworn via Zoom and the only service available at short notice was that provided by an entity known as Remote Legal. It charged $826.29 for its services. The invoice has been produced. This is clearly a disbursement, which was incurred in the particular circumstances applying at the time. There is no reason why ESL should not be entitled to recover the same.

[20]              Accordingly, I uphold the costs claimed by ESL, with the exception of the costs claimed for second counsel. Those costs totalled $896.25. That claim is disallowed. As a result, ESL is awarded costs as against Revital in the sum of $41,705.50. It is also awarded its disbursements, in the sum of $5,829.85.

Wylie J