Far North Holdings Limited v Perry

[2021] NZHC 2003

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-000111

[2021] NZHC 2003

BETWEEN

FAR NORTH HOLDINGS LIMITED

Appellant

AND

GORDON MALCOLM PERRY

Respondent

Hearing:

On the papers

Appearances:

R Mark for the Appellant

G Holm-Hansen for the Respondent

Judgment:

5 August 2021

JUDGMENT OF WALKER J

[Costs judgment]

This judgment was delivered by me on 5 August 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

FAR NORTH HOLDINGS LIMITED v GORDON MALCOLM PERRY [2021] NZHC 2003 [5 August 2021]

[1]                 On 31 May 2021, I dismissed this appeal. As the successful party, Mr Perry is entitled to costs. The parties are not in dispute that Mr Perry is entitled to 2B costs totalling $9,321. The sole issue for determination is whether Mr Perry is entitled to increased costs. Mr Perry argues that he is entitled to a 50 per cent uplift. This would result in a total cost award for the appeal of $13,981.50. Far North Holdings Limited (“FNHL”) does not accept there is any entitlement to increased costs.

[2]                 An award of increased costs is provided for in r 14.6(3) of the High Court Rules 2016. It provides:

14.6     Increased costs and indemnity costs

…

(3)The court may order a party to pay increased costs if—

(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)failing to comply with these rules or with a direction of the court; or

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal

argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or

(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

[3]                 Mr Perry argues that FNHL took an unnecessary step by pursuing the appeal; failed without reasonable justification to accept liability and that it is otherwise in the interests of justice for him to be compensated above scale costs.

[4]He relies on:

(a)the acknowledgements made by FNHL’s own expert on cross-examination in the District Court;

(b)FNHL’s failure, without reasonable justification, to accept an offer of settlement prior to commencing the District Court proceedings; and

(c)FNHL’s conduct in continuing to issue invoices for hard stand charges after issue of the District Court judgment to assert undue pressure on Mr Perry.

[5]                 While it is correct that there were some significant issues with the expert evidence proffered by FNHL, FNHL was entitled to appeal as of right. FNHL did not contribute unnecessarily to the time and expense of the appeal once commenced.1

[6]                 The ‘without prejudice save as to costs’ offer referred to by Mr Perry was an offer which pre-dated the District Court proceedings. It would be relevant to the costs assessment in the District Court. Its impact does not in my view endure beyond that. I accept Mr Mark’s submission that the material issue now is rather whether the appeal should have been pursued since increased costs are not justified merely by dint of losing the appeal.

1      Although FNHL was successful on one minor aspect in terms of admissibility of an expert report, this did not ultimately affect the outcome.

[7]                 The objection to the sending of invoices and statements for hard stand charges is well made, at least once the District Court judgment was issued. But, it is not a litigation tactic which reaches the level of justifying increased costs.

[8]                 Standing back and assessing the arguments on appeal and the submissions made in support and in opposition to the claim to increased costs, I make an order for 2B costs in favour of Mr Perry totalling $9,321. I do not include the costs of filing the cost memorandum. Those costs are to lie where they fall. Costs on costs, although permissible, are not ordered in the usual course and I see no good reason to justify their inclusion in this instance.

............................................................

Walker J