HAWKINS LIMITED AND ELIZABETH PROPERTIES LIMITED

[2024] NZHC 3187

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-273

[2024] NZHC 3187

BETWEEN

HAWKINS LIMITED

Plaintiff

AND

ELIZABETH PROPERTIES LIMITED

Defendant

Hearing:	On the papers
Appearances:	D J Cooper KC and S P Ladd for the Plaintiff J Carlyon and Y Fu for the Defendant
Judgment:	31 October 2024

JUDGMENT OF GAULT J

(Costs on discontinuance)

This judgment was delivered by me on 31 October 2024 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr D J Cooper KC and Mr S P Ladd, Barristers, Auckland

Ms K Van Houtte and Mr J Bell-Connell, Dentons Kensington Swan, Auckland and Wellington Ms J Carlyon and Ms Y Fu, Meredith Connell, Auckland

HAWKINS LTD v ELIZABETH PROPERTIES LTD [2024] NZHC 3187 [31 October 2024]

[1]                 In my costs judgment of 20 June 2024,1 I reserved leave for the parties to file brief memoranda clarifying the status of the proceeding, including as to costs.

[2]                 On 8 July 2024, Hawkins Ltd (Hawkins) filed a notice of discontinuance together with a memorandum seeking leave to discontinue and costs. Leave to discontinue is required since the Court has granted an interim injunction and Hawkins has given an undertaking as to damages.2

[3]                 Hawkins seeks 2B costs of $7,170 for the step of commencing the proceeding and disbursements of $1,608.70 for the filing fee, on the basis that the only relief sought in the proceeding was interim and the filing of the statement of claim was a necessary step in seeking that interim relief.

[4]                 Elizabeth Properties Ltd (EPL) accepts that discontinuance is appropriate, but not that the presumption for costs on the discontinuance3 is displaced. EPL seeks 2B costs of $4,780 for filing its defence, plus $95.65 for the filing fee.

[5]                 Leave to discontinue is granted and Hawkins is released from its undertaking as to damages.

[6]                 I consider there should be no further order as to costs. Insofar as commencing the proceeding was necessary for the purpose of seeking interim relief, the application for which was successful, I consider the presumption that the plaintiff must pay costs on its discontinuance is displaced. However, I do not consider that Hawkins is entitled to an award of costs for commencement (step 1) in addition to the costs already awarded on its interlocutory application. In the event, the surety elected to terminate its liability and pay $3 million to EPL before the adjudication determination. There is no suggestion the determination constituted success by Hawkins. This is not a case where it can be said that Hawkins was successful in the proceeding beyond the success in its application for interim relief already addressed. In the circumstances, it is appropriate that any further costs of the proceeding lie where they fall.

1      Hawkins Ltd v Elizabeth Properties Ltd [2024] NZHC 1629.

2      High Court Rules 2016, r 15.20(1)(a)(i) and (b).

3      High Court Rules 2016, r 15.23.

Result

[7]Leave to discontinue is granted.

[8]Hawkins is released from its undertaking as to damages.

[9]There is no further order as to costs.

Gault J