Floorwise NZ Limited v Colthurst Flooring Limited

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

CaseChat Overview and Summary

In the case of Floorwise NZ Limited v Colthurst Flooring Limited, the primary dispute revolved around applications for further and better discovery made by both parties. The case was heard in the High Court of New Zealand at Whangarei. The plaintiff, Floorwise NZ Limited, and the first defendant/counterclaim plaintiff, Colthurst Flooring Limited, were engaged in a legal battle that required the court to decide on the allocation of costs following their discovery applications. The case involved a detailed examination of the efficiency and merit of the arguments presented by both parties during the discovery process.

The central legal issues the court had to address were whether increased costs were warranted due to inefficiencies and the pursuit of unmeritorious arguments by the parties. The Colthurst parties argued for increased costs, claiming success in both applications and citing the Floorwise parties' inefficiencies and unmeritorious arguments. Conversely, the Floorwise parties opposed the increased costs and argued that they were more successful overall and thus should be awarded costs. The court had to balance these arguments and determine the appropriate allocation of costs under the High Court Rules.

The court concluded that while there were inefficiencies on the part of the Floorwise parties, the Colthurst parties also contributed to the proceedings' time and expense by advancing an unmeritorious argument. The court found that neither party was entirely successful in their respective applications for further and better discovery. Accordingly, the court determined that an order for increased costs was not warranted. However, it found that the Floorwise parties should pay costs to the Colthurst parties for their application, and the Colthurst parties should pay costs to the Floorwise parties for their application. The court set off the costs between the parties, resulting in a final order for the Floorwise parties to pay $2,629 to the Colthurst parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established