Green Way Limited v Mutual Construction Limited

[2022] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001053

[2022] NZHC 1626

UNDER

Copyright Act 1994 and Fair Trading Act 1986

IN THE MATTER OF

A dispute

BETWEEN

GREEN WAY LIMITED

Plaintiff

AND

MUTUAL CONSTRUCTION LIMITED

Defendant

Hearing:	On the papers
Counsel:	C L Elliott QC, B P Molloy and J E Palairet for Plaintiff J D McBride and R L White for Defendant
Judgment:	11 July 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

[Costs]

This judgment was delivered by Associate Judge Andrew on 12 July 2022 at 3.00 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date……………………………

GREEN WAY LTD v MUTUAL CONSTRUCTION LTD [2022] NZHC 1626 [11 July 2022]

Introduction

[1]                  In my judgment of 12 May 2022,1 I dismissed the defendant’s strike out application and granted the plaintiff’s three interlocutory applications (i.e. application by Green Way for conferral of experts, for particular discovery, and for leave to use documents obtained through discovery in the Employment Relations Authority proceedings).

[2]                  The parties have been unable to agree on costs. This decision contains my decision on costs.

Relevant legal principles

[3]                  Rule 14.1 of the High Court Rules 2016 is paramount; costs are ultimately at the discretion of the Court.

[4]                  Under r 14.6(3)(b)(ii), the Court may order increased costs if a party has contributed unnecessarily to the time or expense of the proceedings by taking or pursuing an unnecessary step or an argument that lacks merit.2

Discussion

[5]                  Green Way seeks costs on a 2B basis with an uplift of 20 per cent. It accepts that Mutual is entitled to some costs for Green Way discontinuing the proceedings against Green Way’s former employees under r 15.24. In total, Green Way seeks costs in the sum of $14,615.40.

[6]                  Mutual opposes any uplift on 2B costs and also challenges, amongst other things, the claim for expert witness affidavits (item 30). Mutual contends that an appropriate 2B figure for Green Way’s costs are $7,887.00.

[7]                  I find that there should be a 20 per cent uplift as sought by Green Way. I agree with the submission that Mutual’s strike out application was flawed from the outset. Mutual’s real issue with Green Way’s proceeding was not with the merits of the application, but rather with the way Green Way’s statement of claim was drafted. The lack of particulars did not justify the pursuit of the strike out application. Furthermore,

1      Green Way Ltd v Mutual Construction Ltd [2022] NZHC 1000.

2      See Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [27].

Mutual discontinued the majority of its strike out application just eight minutes after Green Way had filed its full submissions on that application. Mutual then continued its strike out application in respect of the Fair Trading Act cause of action, which was always an ancillary cause of action.

[8]                  I agree that no allowance can be made under item 30 for the expert witness affidavit. As Katz J held in Tandem Group Ltd v ASB Bank Ltd,3 the preparation of interlocutory affidavits is covered by item 22 (filing interlocutory application) and item 23 (filing opposition to interlocutory application). I do, however, allow Green Way to make a claim under time band C for item 22.4

[9]                  I also agree with the submission of Mutual that no costs should be awarded on the plaintiff’s memorandum of 25 February 2022, which related primarily to the contempt issue, or the case management conference convened that same day, during which Green Way unsuccessfully applied to split the interlocutory applications.

[10]              I agree with Green Way’s proposed deduction from the total amount of costs it seeks of $4,780 for the discontinuance of the proceedings against the employee defendants.

[11]              I therefore find that costs should be awarded to Green Way in accordance with the calculation set out in the schedule attached to Green Way’s updated memorandum of 8 June 2022, but with the changes I have outlined in this judgment i.e. a band C calculation on item 22 (filing interlocutory application on 2 February 2022), no allowance for item 30 (preparation of affidavits) and no allowance for item 11 (filing of the memorandum by the plaintiff on 25 February 2022).

Associate Judge P J Andrew

3      Tandem Group Ltd v ASB Bank Ltd [2021] NZHC 1135 at [15].

4      Tandem Group Ltd v ASB Bank Ltd, above n 3, at [16].