Grishin v Bowie - [2021] NZHC 2524

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-000757

[2021] NZHC 2524

BETWEEN
SERGEY GRISHIN

Applicant

AND

JOHN BOWIE

Proposed Defendant/Respondent

Judgment: 24 September 2021

JUDGMENT OF GENDALL J

(Determined on the papers)

[1] On 27 May 2021 I gave a judgment in this matter granting the applicant Mr Grishin’s application for pre-commencement discovery against the proposed defendant and respondent Mr Bowie. Orders were made in favour of Mr Grishin and costs were awarded to him on the application and a substituted service application on a category 2B basis together with disbursements as approved by the Registrar.

[2] Mr Bowie has now filed a memorandum in this Court dated 15 September 2021 which effectively comprises an application pursuant to r 14.8(2) of the High Court Rules seeking the order for costs noted above be altered, varied or discharged and that instead costs on this interlocutory matter should be reserved until any substantive proceeding is disposed of.

[3] In response to this memorandum, counsel for Mr Grishin has filed a memorandum dated 23 September 2021 opposing, first, any reversal, discharge or variation of the costs order and, secondly, any suggestion that instead costs on the interlocutory application should have been reserved.

GRISHIN v BOWIE [2021] NZHC 2524 [24 September 2021]

[4]Rule 14.8 of the High Court Rules provides:

14.8Costs on interlocutory applications

(1)Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a)must be fixed in accordance with these rules when the application is determined; and

(b)become payable when they are fixed.

(2)Despite subclause (1), the court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

(3)This rule does not apply to an application for summary judgment.

[5] The rationale for this rule is outlined at McGechan on Procedure1 at para HR14.8.04:

The rule reflects the fact that the merits of particular applications and those of the substantive proceeding are different matters: Chapman v Badon Ltd [2010] NZCA 613…This is the position even in relation to interim property distribution and maintenance orders in the family law context…

Further, the rule recognises that the costs of an interlocutory application are best fixed contemporaneously by the judge or associate judge who decides it. Where, for special reasons, costs are reserved, it may be wise to fix their quantum…At the least it is appropriate that the Court record the hearing time involved and perhaps stipulate the appropriate time band (under r 14.5).

[6] As to the question whether any “special reasons to the contrary” might exist before delaying the fixing of costs on an interlocutory application, McGechan on Procedure states at HR14.8.03:

In Craig v Social Media Consultants Ltd [2017] NZHC 1613 at [20], the Court found that it was a special reason warranting the reservation of costs that there needed to be an evaluation of the merits of the plaintiff’s claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grishin v Bowie

Details

AGLC: Grishin v Bowie [2021] NZHC 2524
Case: [2021] NZHC 2524
Decision Date: 24 September 2021

CaseChat Overview and Summary

The High Court of New Zealand heard the case of Grishin v Bowie, which involved a dispute between Serghey Grishin and John Bowie. The case was initially about an application for pre-commencement discovery, which was granted to Grishin. The court awarded him costs on the application, along with a substituted service application on a category 2B basis, and approved disbursements. Bowie filed a memorandum seeking to alter, vary or discharge the costs order and instead reserve the costs until any substantive proceeding was disposed of. Grishin opposed any reversal, discharge or variation of the costs order and any suggestion that the costs on the interlocutory application should have been reserved.

The court examined the legal issues in the case, which primarily involved the costs on interlocutory applications as outlined in Rule 14.8 of the High Court Rules. The rationale for this rule is that the merits of particular applications and those of the substantive proceeding are different matters. The court recognised that the costs of an interlocutory application are best fixed contemporaneously by the judge or associate judge who decides it. The court considered whether any "special reasons to the contrary" might exist before delaying the fixing of costs on an interlocutory application. The court concluded that no such special reasons existed in this case, and the original costs order should remain in place.

The reasoning of the court was based on the fact that the application before the court was simply one determining who was involved in a chain of publication of the articles in issue which were said to defame Grishin. The court found that this had nothing to do with protection of sources as commonly understood. The court also considered the costs for the substituted service application, and found that Bowie could have avoided those costs if he had voluntarily provided the information when he was requested to do so. The court concluded that there was nothing in Bowie's application to suggest the original costs order was one that should not have been made. Therefore, the court dismissed Bowie's application, and the costs order remained in place.

The final orders of the court were that the application by Bowie to alter, vary or discharge the costs order and instead reserve the costs until any substantive proceeding was disposed of was dismissed. The costs order remained in place, and was payable as originally determined.

Orders