Hawkins Limited v Elizabeth Properties Limited

[2024] NZHC 1629

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-273

[2024] NZHC 1629

BETWEEN

HAWKINS LIMITED

Plaintiff

AND

ELIZABETH PROPERTIES LIMITED

Defendant

Hearing:	On the papers
Counsel:	D J Cooper KC and S P Ladd for the Plaintiff J Carlyon and Y Fu for the Defendant
Judgment:	20 June 2024

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 20 June 2024 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr D 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 1629 [20 June 2024]

[1]                 In my judgment of 15 March 2024 granting an interim injunction,1 I indicated that, if costs could not be agreed, memoranda (not exceeding three pages) may be filed within 20 working days and I would determine costs on the papers.

[2]The parties have been unable to agree costs.

[3]Hawkins Ltd (Hawkins) seeks scale costs and disbursements, totalling

$20,630.22,2 calculated on a 2B basis except that 2C costs are sought in relation to the filing of the application to address the affidavits required in support of the application and in reply.

[4]                 Elizabeth Properties Ltd (EPL) accepts that Hawkins is entitled to 2B costs and disbursements of $8,082.72 for bringing the application.

[5]I deal with the disputed items as follows:

(a)Hawkins claims for commencement of the proceeding (step 1) on the basis that the relief sought in the statement of claim and application for interim injunction are identical and Hawkins does not seek any relief beyond an injunction pending determination of the liquidated damages adjudication. EPL contends there should be no allowance for this item, nor for the disbursement to file Hawkins’ statement of claim,3 which relate to the substantive proceeding. These items are not usually recoverable on an interlocutory application. However, where the only relief sought is interim, for example an interim injunction in support of other proceedings (such as arbitral or foreign proceedings), these amounts may be recoverable on the basis that the proceeding is concluded and, for example, the costs presumption on a discontinuance does not apply given the interim result. In this case, it is unclear whether the proceeding is concluded. I have not seen a discontinuance. I decline to allow step 1 on this interlocutory application but reserve

1      Hawkins Ltd v Elizabeth Properties Ltd [2024] NZHC 561.

2      The items in Hawkins’ schedule total $20,630.28.

3      This disbursement is not included in Hawkins’ schedule.

leave for the parties to file brief memoranda clarifying the status of the proceeding, including as to costs.

(b)EPL disputes costs for Hawkins’ memorandum for the mentions hearing on 14 February 2024 (step 11) and appearance at that hearing (step 12) on the basis that there should be no allowance for a memorandum accompanying the application, and that appearance at a callover hearing should be a cost in the substantive proceeding. I allow both items. A memorandum for the first call of an application for an interim injunction is helpful given the need for an appearance in the Duty Judge list and to consider interim interim relief. The appearance at that mentions hearing related to the interlocutory application, rather than the substantive proceeding.

(c)EPL disputes 2C costs in respect of the filing of the interlocutory application (item 22). As the High Court Rules 2016 do not separately provide for preparing affidavits in relation to interlocutory applications, the Court may address this through the time allowance for filing the interlocutory application (step 22).4 Whether it is appropriate to do so depends on the circumstances. Here, the affidavits were voluminous but  that  was  mainly  due  to  the  exhibits.   Excluding  exhibits,    Mr Treloar’s affidavit was just over 10 pages and his reply was just over seven pages. Mr Titmuss’ affidavit was six pages and the other two affidavits were very short (excluding exhibits). Given the nature of the interlocutory application, I consider that 2B costs are sufficient.

(d)EPL disputes an allowance for second counsel. Hawkins submits this urgent application required a division of labour between counsel in relation to preparing evidence and submissions. It also says the matter was significant to the construction sector because it provided guidance on calls on performance bonds. It refers again to the volume of

4      Re Miah [2019] NZHC 1836; Tandem Group Ltd v ASB Bank Ltd [2021] NZHC 1135; Green Way Ltd v Mutual Construction Ltd [2022] NZHC 1626; and Kōkako Lodge Trust v Auckland Regional Public Health Service [2022] NZHC 3515.

evidence. I accept the matter was urgent and that two counsel in fact appeared for each party. EPL’s approach to the application, which sought a more stringent threshold for interim injunctions in performance bond cases and argued the threshold was not met given the detailed terms of the contract, also weigh in favour of allowing for second counsel. However, on balance, I do not consider this interim injunction application was sufficiently outside the norm to make an allowance for second counsel.

Result

[6]                 Hawkins is entitled to 2B costs and disbursements of $9,516.78 on the interlocutory application.

[7]                 I reserve leave for the parties to file brief memoranda clarifying the status of the proceeding, including as to costs.

Gault J