Evans v Six Gen Limited - [2025] NZHC 476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2656

[2025] NZHC 476

BETWEEN
BELINDA ANNE EVANS

Plaintiff

AND

SIX GEN LIMITED

First Defendant

KARL JASON EVANS and TELLIC LOUISE EVANS
Second Defendants

AND

SIX GEN LLIMITED
Counterclaim Plaintiff

BELINDA ANNE EVANS

Counterclaim Defendant

On the papers: 12 March 2025

Appearances:

Carole G Smith for the Plaintiff and Counterclaim Defendant W G Manning and Georgia Bowker for the Defendants

and Counterclaim Plaintiff

Judgment:

12 March 2025

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 12 March 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

Solicitors:

………………………….
Registrar/Deputy Registrar

Mac & Co (Jan McNamara), Grey Lyn, for the Plaintiff and Counterclaim Defendant
Bell & Graham (Richard Smith), Matamata, for the Defendants and Counterclaim Plaintiff

Counsel:
Carol G Smith, FortyEightShortland Chambers, Auckland, for the Plaintiff and Counterclaim Defendant W G Manning/George Bowker, Park Chambers, Auckland, for the defendants and Counterclaim Plaintiff

EVANS v SIX GEN LIMITED [2025] NZHC 476 [12 March 2025]

Introduction

[1] On 20 December 2024 the Court delivered a judgment in which the plaintiff’s application to set aside the defendant’s claim for privilege in respect of a number of documents was largely unsuccessful (the Judgment).1 At [64(b) of the Judgment, counsel were directed to endeavour to agree costs, failing which they were to file memoranda as to costs.

[2] Counsel have been unable to agree costs. Counsel for the defendants filed a memorandum dated 13 February 2025, and counsel for the plaintiff filed a memorandum in reply dated 20 February 2025.

Defendants’ position

[3] Counsel for the defendants, submits that the defendants were substantially successful in their opposition to the plaintiff’s interlocutory application, and they seek scale costs on a 2C basis, or alternatively on a 2B basis.

[4] Counsel for the defendants submits that an award of costs on a 2C basis is appropriate given the significant time that was required to prepare for the application, and the number and complexity of the issues and points to the following:

(a)In an effort to avert the need for the plaintiff’s application, counsel for the defendants sent two letters to the plaintiff’s counsel addressing in some considerable detail the privileges claimed for each document and the reasons why the privilege was being asserted;

(b)the issues before the Court were relatively substantial. The plaintiff filed two affidavits (one in reply) which attached more than 100 pages

1 Evans v Six Gen Ltd [2024] NZHC 3944.

of exhibits. The defendants filed three affidavits and a total of 16 pages of exhibits;

(c)the defendants filed lengthy submissions (32 pages) reflecting the many issues raised on the application, and the substantial legal research and analysis required.

[5] Costs on a 2C basis are assessed by counsel for the defendants at $13,742.50 plus disbursements of $143.00 totalling $13,885.50.

[6] As an alternative, counsel for the defendants seeks costs on a 2B basis…

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 Evans v Six Gen Limited

Details

AGLC: Evans v Six Gen Limited [2025] NZHC 476
Case: [2025] NZHC 476
Decision Date: 12 March 2025

CaseChat Overview and Summary

Belinda Anne Evans filed a case against Six Gen Limited, with Karl Jason Evans and Tellic Louise Evans also named as defendants. The dispute revolved around the costs incurred in relation to a previous application to set aside a claim for privilege in respect of certain documents. The case was heard in the High Court of New Zealand in Auckland. The primary legal issue the court needed to address was the appropriate assessment of costs related to the defendants' successful opposition to the plaintiff's interlocutory application. The court had to determine whether the defendants were entitled to costs on a 2C or 2B basis, and if so, whether any reduction was warranted given the partial success of the plaintiff.

The court considered the submissions from both parties. The defendants argued they were substantially successful and thus entitled to scale costs on a 2C basis, or alternatively, on a 2B basis, due to the complexity and volume of issues involved. They cited the extensive preparation time, detailed submissions, and the significant number of documents reviewed. Conversely, the plaintiff contended that the defendants had not justified the additional time claimed and that the plaintiff’s partial success in setting aside the settlement privilege claim warranted a reduction in costs. The court found that while the defendants were largely successful, the plaintiff's success in setting aside the settlement privilege claim justified a reduction in the costs awarded.

The court concluded that 2C costs were not appropriate and that the costs should be assessed on a 2B basis. Given the partial success of the plaintiff, a 15 per cent reduction in the 2B costs was deemed appropriate. This reduction also took into account the plaintiff's late abandonment of the "joint interest exception" during the hearing. The court ordered that the plaintiff pay the defendants $5,789.78, being 2B costs reduced by 15 per cent, along with disbursements of $143.00, for a total of $5,932.78.

Orders