G K Shaw Limited v Green

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-404-2385

[2023] NZHC 1009

BETWEEN

G K SHAW LIMITED

Applicant

AND

JOHN GREEN

First Respondent

AND

CENTREPORT LIMITED

Second Respondent

On the Papers
Judgment:	1 May 2023

JUDGMENT OF ISAC J

[Costs]

Introduction

[1]                 In a judgment of 24 March 2023, I declined G K Shaw’s application for judicial review of an adjudicator’s decision n in a dispute under a construction contract.1

[2]                 The successful respondent, CentrePort Ltd, now seeks costs of $40,689.75, being 2B costs of $27,126.50 with a 50 per cent uplift. CentrePort says that an increased costs award is appropriate because G K Shaw’s claim was without merit and inherently unlikely to succeed.2 Further, it contends that the proceeding was a continuation of the abuse of process in the underlying proceeding whereby G K Shaw, having failed in a first adjudication, sought to litigate the same claim a second time before a different adjudicator.

1      G K Shaw Ltd v Green [2023] NZHC 605.

2      Pursuant to r 14.6(3)(b) of the High Court Rules 2016.

G K SHAW LTD v GREEN & ANOR [2023] NZHC 1009 [1 May 2023]

[3]                 G K Shaw agrees that costs should be awarded on a 2B basis, but takes issue with CentrePort’s claim for increased costs. It says that CentrePort’s 2B costs ought to be $24,354.15. G K Shaw submits that its behaviour in bringing and conducting the proceeding was entirely appropriate, and that the high threshold for increased costs has not been met. In the alternative, it suggests that the Court consider ordering that costs lie where they fall on the grounds that the proceeding concerned a matter of public interest.

Consideration

[4]                 All matters relating to costs are discretionary,3 although that discretion must be exercised on a principled basis. So far as possible the determination of costs should be predictable and expeditious.4

[5]                 While G K Shaw’s argument was novel and in an area not often litigated, I do not consider that the proceeding involved any significant public interest or important matter of public policy. Certainly, there was nothing to justify a departure from the ordinary principle that costs should follow the event.5 The question then is quantum. In that respect, the parties agree that the appropriate scale is 2B.

[6]                 The difference between the parties’ positions is less than $3,000. In essence, G K Shaw argues that CentrePort cannot claim costs for the preparation of case management conferences that did not occur (because they were vacated by consent in advance or were never scheduled), and should not be awarded the full scale in relation to the filing of joint memoranda which G K Shaw helped to prepare and file. In my view, CentrePort is entitled to costs for preparation for case management conferences which did not proceed on the basis of joint memoranda that were filed. It follows that I accept its claim for costs for the first case…