Finlay v Floorman Limited - [2024] NZHC 3838

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-368

[2024] NZHC 3838

BETWEEN
STEVEN JOHN FINLAY AND SUSAN JEAN BEAUMONT FINLAY

Plaintiffs

AND

FLOORMAN LIMITED

First Defendant

BRETT IRVING
Second Defendant

KAPITI FLOORWORKS LIMITED
First Third Party

HASMAT WELLINGTON LIMITED

Second Third Party

On the Papers

Counsel:

F E Geiringer for Plaintiffs

H E Cameron for First Defendant
M R G van Alphen Fyfe for Second Defendant and First Third Party
T J Kim for Second Third Party

Judgment:

13 December 2024

JUDGMENT OF McQUEEN J

[Costs]

[1] In a judgment dated 20 November 2024, I declined the plaintiffs’ application for confidentiality orders (the Application).1 I was satisfied that costs should follow the event. I encouraged the parties to agree costs but set a timetable for memoranda to be filed and served if that was not possible.

1 Finlay v Floorman Ltd [2024] NZHC 3487.

FINLAY v FLOORMAN LTD & ORS [2024] NZHC 3838 [13 December 2024]

[2] The plaintiffs indicate they have agreed costs with the first and second defendants and first third party amounting to $1,912, and these costs were premised on only parts of the costs for items 11 and 13 of sch 3 to the High Court Rules 2016 (the Rules) being applicable.

[3] The plaintiffs were unable to agree costs with the second third party. Memoranda have been filed outlining their respective positions.

[4] I now determine costs between them, noting that it is unfortunate agreement was not reached given the small sum in issue.

Parties’ positions

[5] Mr Kim, for the second third party, seeks costs against the plaintiffs for preparing written submissions in an interlocutory application (item 24 in sch 3 to the Rules) on a 2B basis in the sum of $3,585. Mr Kim submits that despite the informal nature of the Application, the second third party filed submissions by way of memorandum and therefore has incurred costs in respect of those submissions.

[6] Mr Geiringer, for the plaintiffs, opposes the application for costs on the basis the costs sought are excessive and were incurred unnecessarily. He submits that no order for costs should be made. Mr Geiringer says the issue of confidentiality is of no relevance to the second third party as it is not a party to the plaintiffs’ claim. He further submits that even if the second third party were to file submissions on the Application, it failed to take steps to avoid duplicate costs by co-ordinating with the other parties opposing the Application. Mr Geiringer says that the second third party filed brief submissions that were mostly duplicative of those of the other parties, and yet seeks twice as much in costs as the other opposing parties combined, which is excessive.

Discussion

[7] All matters of costs are at the discretion of the court.2 The general principles which apply to the determination of costs include that costs follow the event, and that

2 High Court Rules 2016,…

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 Finlay v Floorman Limited

Details

AGLC: Finlay v Floorman Limited [2024] NZHC 3838
Case: [2024] NZHC 3838
Decision Date: 13 December 2024

CaseChat Overview and Summary

In Finlay v Floorman Limited, the High Court of New Zealand addressed a dispute over costs following an interlocutory application for confidentiality orders. The plaintiffs, Steven John Finlay and Susan Jean Beaumont Finlay, sought to prevent the disclosure of certain information to the defendants and third parties. The second third party, Hasmat Wellington Limited, incurred costs in responding to the application. The primary legal issue was whether the second third party was entitled to costs for preparing submissions on the confidentiality application, and if so, what the appropriate quantum of those costs should be.

The court considered that the second third party's engagement with the application was both necessary and logical, given the potential impact on its liability to the first defendant. The court noted that the second third party's submissions were not duplicative of those from other parties but were largely agreed upon, reinforcing its participation. The plaintiffs argued that the costs sought were excessive and unnecessary, but the court found that the second third party had a legitimate interest in the outcome of the confidentiality application. However, the court agreed that the costs on a band B basis were too high given the narrow scope and informal nature of the application. Ultimately, the court ordered the plaintiffs to pay the second third party $2,000 in costs, balancing fairness and the small amount in dispute.

Orders