Floorwise NZ Limited v Colthurst Flooring Limited

[2025] NZHC 1044

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2022-488-37

[2025] NZHC 1044

BETWEEN

FLOORWISE NZ LIMITED

Plaintiff / First Counterclaim Defendant

AND

COLTHURST FLOORING LIMITED

First Defendant / Counterclaim Plaintiff

SAM FRANCIS JOHN COLTHURST
Second Defendant

TERESA ELIZABETH COLTHURST
Third Defendant

JAMES LYNCH

Second Counterclaim Defendant

Hearing:

On the papers

Appearances:

C Orton for the Plaintiff

K T Glover / A J Peat for the Defendants

Judgment:

5 May 2025

JUDGMENT OF GARDINER J

(Costs)

This judgment was delivered by me on 5 May 2025 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

C Orton, Auckland
Gilding Baker Law, Whangarei

K T Glover and A J Peat, Shortland Chambers, Auckland

FLOORWISE NZ LTD v COLTHURST FLOORING LTD [2025] NZHC 1044 [5 May 2025]

Introduction

[1]                 In a judgment delivered on 19 September 2024, I determined the parties’ respective applications for further and better discovery.1 I invited further submissions on costs, as the Colthurst parties sought increased costs from the Floorwise parties on both applications.

[2]                 The Colthurst parties claim that they were successful in both applications. They submit that an uplift is appropriate because the Floorwise parties were inefficient and pursued unmeritorious arguments.

[3]                 The Floorwise parties oppose an order for increased costs and say further that they were the more successful parties in both applications. Therefore, they should be awarded 2B costs together with disbursements.

[4]                 Increased costs may be ordered where a party has failed to act reasonably, and that failure has contributed to the time and expense of the proceeding.2

[5]                 I do not  consider that an order for increased costs is  warranted in  this case.  I accept that there were gaps in the discovery of the Floorwise parties that they should have  addressed  without  the  need  for  Court  intervention.  On  the  other  hand,  the Colthurst parties were only completely successful in relation to three of the nine categories of documents they sought from Floorwise.

[6]                 Furthermore, the Colthurst parties themselves contributed to the time and expense of the hearing by advancing an unmeritorious argument: that Floorwise had waived privilege in relation to correspondence in the eighth category.

[7]                 Balancing these considerations, I consider that in relation to the Colthurst parties’ application, an order against Floorwise for 2B costs is appropriate.

1      Floorwise NZ Ltd v Colthurst Flooring Ltd [2024] NZHC 2708.

2      High Court Rules 2016, r 14.6; Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27]; and Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [165].

[8]                 The Floorwise parties were successful in relation to one of the two categories of documents they sought from Colthurst. I do not accept the Colthurst parties’ submission that, because they still do not accept that the documents in this category are relevant, they should be considered the successful party.

[9]                 Accordingly, I consider that an order against the Colthurst parties to pay 2B costs in relation to Floorwise’s application is appropriate.

Result

[10]              I order the Floorwise parties to pay the Colthurst parties 2B costs of $8,843 and disbursements of $500.

[11]              I order the Colthurst parties to pay the Floorwise parties 2B costs of $6,214 and disbursements of $500.

[12]              Per r 14.17 of the High Court Rules 2016, I order that the Floorwise parties’ costs be set off against the Colthurst parties’ costs and the Floorwise parties pay

$2,629.

Gardiner J