Foundation Village Limited v Growing Spaces Limited

[2023] NZHC 3775

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001805

[2023] NZHC 3775

BETWEEN

FOUNDATION VILLAGE LIMITED and GENERUS FOUNDATION LIMITED
(together trading as the FOUNDATION VILLAGE PARTNERSHIP)
Applicants

AND

GROWING SPACES LIMITED

Respondent

On the papers
Appearances:	K M Quinn & A C S Lemmon for the Plaintiffs S C I Jeffs & G D Simms for the Defendant
Judgment:	19 December 2023

JUDGMENT OF TAHANA J

(Costs)

This judgment was delivered by me on 19 December 2023 at 11am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Wynn Williams, Auckland

K M Quinn, Barrister, Auckland Minter Ellison Rudd Watts, Auckland

FOUNDATION VILLAGE LIMITED v GROWING SPACES LIMITED (Costs) [2023] NZHC 3775 [19

December 2023]

Introduction

[1]        In my judgment dated 21 September 2023, I indicated that the respondent is entitled to costs.1 The parties have been unable to agree costs and have filed memoranda.

[2]        The respondent seeks costs on a category 2B basis of $12,846.25 plus disbursements of $160.00. The applicants agree that costs are payable on a category 2B basis but say that costs should be limited to $8,723.50 and disbursements limited to $110.00.

[3]        I therefore need to determine the appropriate amount of costs and disbursements payable to the respondent.

What category 2B costs are payable to the respondent?

[4]The applicants say that the respondent is not entitled to the following costs:

(a)costs of $956.00 for the memorandum prior to the appearance on 31 August 2023;

(b)costs of $956.00 for the costs memorandum dated 6 October 2023;

(c)costs of $298.75 for second counsel;

(d)an allocation of 1.5 days ($3,585.00) for the supplementary submissions, and if any costs are allocated, they should be limited to 0.5 days ($1,195.00); and

(e)costs of $478.00 to seal the judgment.

[5]I consider each of the above in turn.

1      Foundation Village Ltd v Growing Spaces Ltd [2023] NZHC 2638 at [43].

[6]        The applicants refer to Lang J’s minute dated 30 August 2023 which indicates that the purpose of the mention the following day is to allocate a fixture for the hearing of the interim injunction application. The applicants say it was unnecessary for the respondent to file a memorandum prior to the mention.

[7]        I do not consider it was unreasonable for the respondent to file a memorandum to notify the Court of its position in response to the application. That was relevant to whether a fixture was necessary, and to the likely time required for the hearing. I therefore allow costs for the filing of the memorandum dated 31 August 2023.

[8]        I agree with the applicants that there is no entitlement to costs for the preparation of the costs memorandum. I decline to award costs in respect of the memorandum on costs dated 6 October 2023.

[9]        The hearing of the interim injunction was 1.25 hours in duration. Second counsel was unnecessary, and I decline to award costs for second counsel.

[10]      I also agree with the applicants that the time allocated for supplementary submissions should be reduced to 0.5 days given that the submissions were to address a discrete issue and were significantly shorter than the submissions presented at the hearing on 14 September 2023. I therefore allocate 0.5 days ($1,195.00) for the supplementary submissions.

[11]      Turning to the costs of sealing the judgment, there is no reason for the judgment to be sealed. The outcome of the judgment simply requires that the parties resolve the dispute at arbitration.

[12]I therefore award costs to the respondent on a category 2B basis as follows:

Item	Description	Allocated days	Amount
11	Filing memorandum for mention hearing on 31 August 2023	0.4	$956.00
12	Appearance at mention hearing on 30 August 2023	0.2	$478.00
12	Appearance at mention hearing on 31 August 2023	0.2	$478.00

23	Filing opposition to interlocutory application	0.6	$1,434.00
24	Preparation of written submissions in advance of hearing	1.5	$3,585.00
24	Preparation of supplementary submissions after hearing	0.5	$1,195.00
26	Appearance at hearing	0.25	$597.50
TOTAL			$8,723.50

[13]I award disbursements of $110.00 for the filing of the notice of opposition.

Result

[14]      For the reasons set out above, the applicants are required to pay to the respondent costs of $8,723.50 and disbursements of $110.00.

Tahana J