healthAlliance N.Z. Limited v Hewlett-Packard New Zealand
[2025] NZHC 891
•11 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-001215
[2025] NZHC 891
BETWEEN HEALTHALLIANCE N.Z. LIMITED
Plaintiff/Counterclaim Defendant
AND
HEWLETT-PACKARD NEW ZEALAND
First Defendant
CAPEX DISCOVERY INC
Second Defendant/CounterclaimantZOVY LLC
Third Defendant/Counterclaimant
on the papers Counsel:
R J Hollyman KC, E J Watt & L E Kenner for the Plaintiff/Counterclaim Defendant
K E Cornegé and K R McNicolas for the First Defendant
G C Williams, D Scott-Jones & B E Carey for the Second & Third Defendants/Counterclaimants
Judgment:
11 April 2025
JUDGMENT OF TAHANA J
[Costs]
This judgment was delivered by me on 11 April 2025 at 1.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Maberly & Co, Auckland A J Park, Wellington
HEALTHALLIANCE N.Z. LIMITED v HEWLETT-PACKARD NEW ZEALAND [Costs] [2025] NZHC 891
[11 April 2025]
Introduction
[1] In my judgment dated 20 September 2024,1 healthAlliance N.Z. Ltd (healthAlliance) was successful:
(a)in its claim against Hewlett-Packard New Zealand (HP) for an order requiring HP to assist in delivering up its data; and
(b)in defending the counterclaim by Capax Discovery Inc (Capax) and Zovy LLC (Zovy) for alleged under licensing.
[2] healthAlliance did not pursue its claim against Capax/Zovy for an order to yield up its data.
[3] healthAlliance seeks an award of costs of $750,000 against the defendants jointly and severally, arguing that indemnity costs are appropriate and that this amount is less than its actual costs which exceeded $1,000,000. In addition, healthAlliance seeks $108,015.66 in disbursements. The total amount claimed is $858,015.66.
[4] HP accepts it should pay reduced costs in relation to healthAlliance’s claim but argues that it is not liable for healthAlliance’s costs in defending Capax/Zovy’s counterclaim. HP also argues that there is no basis for indemnity costs and a reduced costs order should be made because healthAlliance was not successful in all aspects of its claim.
[5] Capax/Zovy argue that costs should lie where they fall because they had an equal measure of success with healthAlliance. Capax/Zovy also submit that healthAlliance’s costs submissions should be rejected because they were filed out of time.
[6]The issues I therefore need to determine are:
(a)Whether healthAlliance’s costs submissions should be rejected.
1 healthAlliance NZ Ltd v Hewlett-Packard New Zealand [2024] NZHC 2725.
(b)Whether healthAlliance is entitled to indemnity, scale or reduced costs against Capax/Zovy.
(c)Whether healthAlliance is entitled to indemnity, scale or reduced costs against HP.
[7] Capitalised terms in this judgment have the same meaning as set out in my judgment dated 20 September 2024.
Should healthAlliance’s costs submissions be rejected?
[8] healthAlliance was initially directed to file its costs submissions by Friday, 18 October 2024. Two extensions were granted. Capax/Zovy did not object to the second extension but asked that no further extension be granted. I then directed that healthAlliance file its costs submissions by 22 November 2024, noting that no further extension will be entertained.2
[9] healthAlliance filed its costs submissions and supporting documents by way of email at 5.12 pm on Friday, 22 November 2024. Capax/Zovy argue that I should reject those submissions because the Court indicated that “no further extension will be entertained”, referring to r 5.1B(1)(c) of the High Court Rules 2016 which provides that documents are to be filed during registry hours.
[10] The Court clearly has jurisdiction to grant leave for the 12-minute late filing. The Court is required to have regard to the objective of securing the “just” determination of a proceeding.3 To reject the submissions for a 12-minute late filing would be to ignore the interests of justice. Pedantry is seldom the friend of justice. There is no prejudice to Capax/Zovy in the Court accepting the costs submissions despite this short delay.
2 healthAlliance NZ Ltd v Hewlett-Packard New Zealand HC Auckland CIV 2021-404-001215, 14 November 2024.
3 High Court Rules 2016, r 1.2.
Is healthAlliance entitled to costs against Capax/Zovy?
[11] Capax/Zovy argue that healthAlliance discontinued its claim and therefore each party had an equal measure of success (Capax/Zovy were unsuccessful in pursuing the counterclaim).
Relevant law
[12] Costs are at the discretion of the Court.4 The party who fails should pay the costs of the party who succeeds and costs should reflect the complexity and significance of the proceeding.5 The other relevant principles applying to the determination of costs are set out at r 14.2 of the High Court Rules 2016.
[13] The Court of Appeal in Packing In Ltd (in liq) v Chilcott provided guidance on the approach to costs when both parties have had a measure of success. The starting point is whether the parties had an equal measure of success and failure. The court must consider matters that go to the court’s ultimate discretion which includes time spent on each issue. In the end the court must endeavour to do justice to both sides:6
[5] In a case such as the present, where in broad terms each party has had similar success, we do not consider it helpful to focus too closely on the question which party has failed and which has succeeded. Costs in a case such as this should rather be based on the premise that approximately equal success and failure attended the efforts of both sides. To that starting point should be added issues such as how much time was spent on each transaction or group of transactions in issue, and any other matters which can reasonably be said to bear on the Court’s ultimate discretion on the subject of costs. In the end, as in all costs matters, the Court must endeavour to do justice to both sides, bearing in mind all material features of the case.
[14] It is therefore necessary to consider whether the parties have had an equal measure of success and if not, whether healthAlliance is entitled to costs against Capax/Zovy.
4 Rule 14.1(1).
5 Rule 14.2(1)(a) and (b).
6 Packing In Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869.
Did Capax/Zovy have an equal measure of success?
[15] After the hearing, the Court requested clarification from healthAlliance as to its claim against Capax/Zovy noting that healthAlliance’s senior counsel had acknowledged that the Software Agreement had not been novated to Capax/Zovy so those parties could not have assumed any liabilities under it.7
[16] healthAlliance had pleaded (at [84] of the amended statement of claim) that Capax/Zovy had acted without “contractual authority” or other “lawful justification” when it refused to yield up healthAlliance’s archived data, despite reasonable request and valid consideration. healthAlliance did not specify whether Capax/Zovy had acted without contractual authority under the Support Agreement or the Software Agreement (or both) or whether they had acted in breach of a duty of care or contrary to equity. healthAlliance then pleaded in the alternative (at [85] of the amended statement of claim) that as an assignee, Capax/Zovy had breached the Software Agreement. It was for this reason that the Court asked for clarification as to healthAlliance’s claim against Capax/Zovy in relation to its data.
[17] In response to the Court’s request, healthAlliance confirmed that it no longer sought an order requiring Capax/Zovy to deliver up its data thereby confirming that it was not relying on the Support Agreement or any other cause of action to require Capax/Zovy to deliver up its data. That aspect of healthAlliance’s claim was therefore discontinued.
[18] healthAlliance argue that it was justified in withdrawing that aspect of its claim during the trial because it was not until it received the details of the HP/Micro Focus merger and spin off arrangements that it knew that the Software Agreement had not been novated.
[19] I do not accept that disclosure of the details of the merger and spin off documentation was the reason for the discontinuance. healthAlliance did not plead (whether in the alternative or otherwise) that the Software Agreement had been
7 healthAlliance NZ Ltd v Hewlett-Packard New Zealand HC Auckland CIV 2021-404-001215, 12 August 2024 (Request for clarification from healthAlliance N.Z. Ltd).
novated to Capax/Zovy so its claim was never premised on a novation. The disclosure of the documentation was relevant to whether there had been a valid assignment.
[20] Further, as Capax/Zovy point out, healthAlliance as the other party to the Software Agreement would need to consent to a novation, so healthAlliance would have known that this had not occurred.
[21] For these reasons, Capax/Zovy had a measure of success and ordinarily would be entitled to costs relating to the defence of that aspect of healthAlliance’s claim.
[22] healthAlliance then argue that it was successful in so far as it sought a declaration that:
Any demands or claims for payment by Capax and/or Zovy against healthAlliance in reliance on the Contract [Software Agreement] or for the payment for further licenses are ultra vires, unenforceable and/or otherwise null, void and invalid.
[23] While I did not make the declaration sought, I did find (in the context of considering Capax/Zovy’s counterclaim) that Capax/Zovy were not entitled to claim for alleged under licensing. To that extent, healthAlliance achieved the outcome it sought in relation to the licensing issue, namely, that it was not liable for any payments for further licences.
[24] Capax/Zovy criticised healthAlliance’s failure to distinguish between costs relating to the successful claim against HP, the withdrawn claim against Capax/Zovy and the successful defence of the counterclaim. That is a valid criticism. For this reason, I directed that healthAlliance provide a breakdown of its costs in relation to the claim and counterclaim.
[25] In response, healthAlliance argued that the claim and counterclaim both related to the same licence fee issue, being the number of licences required and the price to be paid for them. healthAlliance submitted that approximately 80 per cent of its costs related to the licence fee issue with the remaining 20 per cent relating to the claim for an order to deliver up its data.
[26] In contrast, Capax/Zovy argued that healthAlliance was wholly unsuccessful in its claim and that the costs were roughly equal, Capax/Zovy refer to the costs incurred in defending the claim, which included:
(a)all the usual 2B scale items, including preparation of its statement of defence, inspection of documents, memoranda for, and attendance at, case management and pre-trial conferences, and preparation for, and attendance at, the nine day trial; and
(b)its reasonable disbursements including both factual and expert witnesses, noting in particular that Capax/Zovy’s expert Robert Stummer’s evidence was entirely focused on the ultimately withdrawn breach of contract claims levelled against Capax/Zovy.
[27] I disagree that the whole of Mr Stummer’s evidence was focused on the discontinued aspect of the claim. His evidence covered licensing, the audit process, the “Health Check” and under licensing. This was relevant to the counterclaim and the claim in so far as the claim sought a declaration as to licensing.
[28] A very significant portion of the evidence and the hearing focused on the licensing issue. healthAlliance’s claim in relation to retrieval of its data turned on interpretation of the Software Agreement and whether it included an implied term and did not take much hearing time. Based on the time spent at the hearing on each issue, I agree with healthAlliance that approximately 80 per cent of the proceedings related to the licensing issue. I therefore consider that healthAlliance had a greater degree of success than Capax/Zovy and is therefore entitled to costs against those parties.
Is healthAlliance entitled to indemnity costs?
[29]healthAlliance seeks indemnity costs against Capax/Zovy.
[30]The court may order a party to pay increased costs if:8
8 Rule 14.6(3).
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)taking or pursuing an unnecessary step or an argument that lacks merit; or 9
(ii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or10
(iii)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or11
(c)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.12
[31] The Court may order a party to pay indemnity costs if the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding,13 or some other reason justifies an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.14
9 Rule 14.6(3)(b)(ii).
10 Rule 14.6(3)(b)(iii).
11 Rule 14.6(3)(b)(v).
12 Rule 14.6(3)(d).
13 Rule 14.6(4)(a).
14 Rule 14.6(4)(f).
[32] Indemnity costs may be awarded against a party that has behaved “badly or very unreasonably”.15 The Court should be satisfied the party knew or ought to have known at the relevant time that their case had no prospect of success.16 To make this assessment, the Court may consider different stages of the proceeding separately.17 A claim for indemnity costs must be “reasonably incurred” and supported by an appropriately detailed breakdown.18
[33] In Bradbury v Westpac Banking Corp, decided under the earlier High Court Rules, the Court of Appeal identified categories of unreasonable behaviour including:19
(a)commencing or continuing proceedings for some ulterior motive;
(b)commencing or continuing proceedings in wilful disregard to known facts or clearly established law; and
(c)making allegations which ought never to have been made, or unduly prolonging a case by groundless contentions (the “hopeless case” test).
[34] The so-called “hopeless case” test was explained further by the Court of Appeal in Ben Nevis Forestry Ventures Ltd v CIR as follows: 20
The reference to French J’s “hopeless case” test is to an observation made by French J (now Chief Justice of Australia) in J Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) (No 2) that indemnity costs may be awarded where “a party persists in what should on proper consideration be seen as a hopeless case”. French J relied on an earlier decision in which Woodward J said that it was appropriate to consider awarding indemnity costs “whenever it appears that an action has been
15 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 [Bradbury] at [27]; see also AFI Management Pty Ltd v Lepionka & Co Investments Ltd [2018] NZHC 1285 at [15]- [16].
16 Laura O’Gorman (ed) Sim's Court Practice (online ed, LexisNexis)) at [HCR14.6.6].
17 Foodstuffs (Auckland) Ltd v Progressive Enterprises Ltd HC Auckland M680/SW02, 13 November 2002.
18 Rule 14.6(1)(b); Alison v Dahiya Enterprises Ltd HC Napier CIV-2007-441-526, 23 April 2008; Edel Metals Group Ltd v Geier Ltd [2018] NZCA 494; and Sim’s Court Practice, above n 16, at [HCR14.6.7].
19 Bradbury, above n 15, at [29].
20 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 348, (2014) 22 PRNZ 322 at [17].
commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success".
(footnotes omitted).
[35]healthAlliance seeks indemnity costs against Capax/Zovy on the basis that:
(a)the counterclaim was “hopeless” and contrary to known facts;
(b)the counterclaim was brought for an ulterior purpose;
(c)Capax/Zovy refused to accept offers of resolution; and
(d)the actual costs are reasonable.
[36]I consider each of these arguments in turn.
Was the counterclaim hopeless and contrary to known facts?
[37] Capax/Zovy argue that its counterclaim was not hopeless and that this is evidenced by healthAlliance’s failed summary judgment application. healthAlliance withdrew its application after Capax/Zovy entered into a deed of assignment (the 2022 Deed). The fact that costs were not awarded does not indicate that the substantive counterclaim was not hopeless. The summary judgment application was based on an alleged lack of standing under the Software Agreement and not on the underlying merits of the counterclaim.
[38] Capax/Zovy then argue the counterclaim was not hopeless because they were not involved in the initial configuration of HPCA. Capax/Zovy charges customers for each registered user while there was evidence that healthAlliance undertook its own configuration.
[39] I do not accept that Capax/Zovy’s non-involvement in the initial configuration of HPCA justified pursuit of the counterclaim. Key HP personnel subsequently worked for Capax/Zovy and the evidence indicated that Capax/Zovy had visibility of the configuration by at least the time of the Health Check.
[40] In these circumstances, Capax/Zovy knew how HPCA was configured and knew that its configuration was consistent with the default settings as recommended by HP. In these circumstances, its position was contrary to known facts.
Was the counterclaim brought for an ulterior motive?
[41] In my judgment I considered that Capax/Zovy had alleged healthAlliance was under-licensed to put pressure on healthAlliance at a time when healthAlliance required assistance to extract its data because it wished to move to other software. Capax/Zovy refused to assist healthAlliance to extract its decrypted data despite healthAlliance’s willingness to pay for that service. I accepted that Capax/Zovy’s conduct was part of a deliberate strategy to pressure healthAlliance to pay it more monies because it was not satisfied with the revenue it had been able to recover by reason of the arrangements HP had put in place with healthAlliance. To that extent, the allegations of under-licensing were made for an ulterior purpose.
[42] When healthAlliance was unable to extract its data, it was then left with no option but to issue legal proceedings. When it did so, Capax/Zovy maintained its position that it was entitled to unpaid licence fees.
Offers of settlement
[43] On 30 June 2021, healthAlliance’s solicitors notified the solicitors for Capax/Zovy that a claim was being filed and set out the reasons why the allegation of under licensing was “fundamentally flawed”. healthAlliance referred to the contemporaneous evidence; the conduct of Capax/Zovy including the “Health Check”; the functions within HPCA which were configured by HP (and had never been changed); and the fact that the relevant full time equivalent (FTE) count was 30,000 (significantly less than the 164,638 user accounts on which Capax/Zovy based its claim for under licensing). healthAlliance also argued that Capax/Zovy’s allegations of under-licensing were consistent with their published strategy of extracting extra profits and reiterated that it had offered to pay $500,000 for Capax/Zovy to migrate its data but that offer had been refused.
[44] Capax/Zovy argue that the letter did not amount to an offer to settle because healthAlliance’s offer to pay $500,000 had occurred in the past.
[45] My findings supported healthAlliance’s arguments as set out in the above letter. It is obvious from the letter that healthAlliance had been willing to resolve the dispute by paying Capax/Zovy $500,000 for a full migration, but that offer had been refused. I therefore consider that the letter is relevant and indicates that an offer had been rejected such that Capax/Zovy were on notice that if it continued to maintain its allegations, it would be exposed to an adverse costs award.
[46] healthAlliance again wrote to Capax/Zovy on 18 March 2024 prior to the trial. The letter referred to the evidence and the likely conclusions arising from that evidence indicating that there was little or no realistic chance of success. healthAlliance indicated that it would be willing to settle by paying $425,000, subject to Zovy providing Te Whatu Ora with an offline extraction of all data and support to shut down the system. healthAlliance informed Capax/Zovy that it would rely on the correspondence in support of a claim for indemnity costs. Capax/Zovy was therefore aware of the risk that it would be liable for indemnity costs if it did not resolve the counterclaim.
[47] On 16 April 2024, healthAlliance’s solicitors again wrote to the solicitors for Capax/Zovy responding to their letter of 25 March 2024 (the latter of which has not been provided to the Court) and increased the offer to $450,000 in full and final settlement and on the conditions as previously set out noting that it “would expect the details of the process by which [Capax/Zovy] fulfil the data extraction and support conditions of settlement can be readily resolved between the parties.”
[48] Capax/Zovy argue that the offers prior to trial were too late. Those offers however, must be viewed in the context of the June 2021 letter which indicates an earlier offer to pay $500,000 for Capax/Zovy’s services had been made and rejected.
[49] I consider that Capax/Zovy had notice of the flaws in its counterclaim and prior to commencement of the proceeding received an offer to resolve the dispute that would have resulted in Capax/Zovy receiving revenue for a service that was presumably
available (given it involves assisting a client to access the exporting functionality of HPCA). Capax/Zovy rejected that offer, and deliberately took the risk of an adverse costs order. That conduct is relevant when determining whether indemnity costs are appropriate.
Are the actual costs reasonable?
[50] healthAlliance has filed an affidavit from Robert Stewart KC opining as to the reasonableness of its costs. That opinion is based on the hourly rates and total hours spent by the solicitors and each counsel. Mr Stewart attaches a breakdown of hours and rates indicating total costs of $1,027,392.56.
[51] The invoices provided do not include any description of the work undertaken so there is no analysis as to whether the time spent on different tasks was reasonable. An overall assessment has been made based on the total hours and Mr Stewart’s view of the complexity of the proceedings, including the volume of discovery and the interlocutory applications. There is no analysis of the likely costs regarding those applications for which costs has been determined or resolved. There is also no explanation as to why an hourly rate of $974 for senior counsel is reasonable. In awarding indemnity costs, the Court must be satisfied that the costs are reasonable. The disparity between scale costs and indemnity costs is also very significant (approximately $100,000 compared to $600,000).
[52] Capax/Zovy argue that the invoices during the time periods where costs were determined or resolved amount to $603,273.61. That amount is approximately 60 per cent of the total costs. healthAlliance acknowledge the costs to which it is not entitled are approximately 25 per cent or $250,000 and this is why it has not sought to claim for all its costs.
[53] There is a discrepancy as to whether the costs that should be disregarded are approximately $250,000 or $603,273.61.
[54] In these circumstances, I am not satisfied that the total indemnity costs claimed are reasonable such that the Court is justified in requiring Capax/Zovy to pay
$600,000, being the amount healthAlliance alleges relate to the licensing issue.
[55] Given the significant disparity between actual costs and scale costs, and the lack of clarity as to the amount of costs that relate to those matters for which costs have already been determined, I am not satisfied that the actual costs claimed are reasonable. I consider that reasonable costs are likely to be closer to $200,000 (being the costs claimed on a 2B and 3B basis plus 50 percent).
[56] I therefore consider that healthAlliance is entitled to costs of $200,000 against Capax/Zovy.
Is healthAlliance entitled to reduced, increased or indemnity costs against HP?
Costs of defending the counterclaim
[57] I agree with healthAlliance that Capax/Zovy could not have pursued the counterclaim without the support of HP. HP sold the software to healthAlliance so would have known whether it had intended that healthAlliance pay a licence fee for every user who by default was registered in the HPCA system or whether the licensing regime was as per healthAlliance’s interpretation of the Software Agreement. It was HP’s standard form agreement on which Capax/Zovy was relying to assert alleged under-licensing. HP made submissions as to the interpretation of the Software Agreement but there is no evidence that HP supported or encouraged Capax/Zovy’s allegations of under-licensing.
[58] In circumstances where HP was not a party to the counterclaim, I decline to make orders that it contribute to healthAlliance’s costs in defending the counterclaim.
Costs of healthAlliance’s claim
[59] Counsel for HP submit that the Court should award reduced costs, pursuant to r 14.7(d):
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
…
(d) although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs; …
[60] The time and cost to meet an unsuccessful argument is not an exact science and should be considered in the round.21 Counsel for HP relied upon Weaver v Auckland Council where a reduction of 50 per cent was applied against a plaintiff who only succeeded in respect of roughly half of the claim.22 Any reduction must therefore be assessed against the likely costs involved in those parts of the claim that were unsuccessful.
[61] HP argues that healthAlliance failed in its claims against HP for breach of contract and that it had limited success overall because the Court did not find an implied term as pleaded by healthAlliance.
[62] healthAlliance’s claim was ultimately brought because it requires access to its data. That data sits in a software solution sold by HP with HP holding the expertise to enable healthAlliance to extract its data from the software in unencrypted form. HP agreed to provide additional services when selling that software and it retains the obligations under the Software Agreement.
[63] Despite healthAlliance agreeing to pay a fee for that service, HP defended the claim and did not (as far as the Court is aware) offer to provide any service to resolve healthAlliance’s obvious difficulty which arose because of the functionality of the software. healthAlliance was left in a difficult position that was not of its making. I consider that this is relevant when assessing whether there is any basis to increase or reduce a costs award against HP.
[64] Nonetheless, I do not consider that HP’s conduct justifies any increase in 2B costs in the absence of any settlement offer to HP or any conduct of HP that contributed to an increase in healthAlliance’s costs in pursuing its claim. Further, I am not satisfied that those aspects of healthAlliance’s claim that were unsuccessful caused HP to incur
21 Taylor v Roper [2019] NZHC 16 at [17].
22 Weaver v Auckland Council [2017] NZCA 330 at [26].
any material increase in costs such as to justify a reduction, especially when HP sought to advance arguments as to the license terms which supported Capax/Zovy.
[65] I therefore consider that healthAlliance is entitled to costs against HP in relation to the claim on a 2B basis.
Disbursements
[66] healthAlliance claims costs for disbursements of $108,015.66. healthAlliance is not entitled to recover twice for the filing fee for the statement of claim. Nor is it entitled to recover the filing fee for opposing Capax/Zovy’s claim to set aside confidentiality and privilege claims as its opposition was unsuccessful. healthAlliance is otherwise entitled to the costs of its disbursements totalling $106,746.10.
Result
[67]For the reasons set out above, I order that:
(a)Capax/Zovy is to pay to healthAlliance $200,000 in relation to the costs of the counterclaim.
(b)HP is to pay healthAlliance 2B costs in relation to the claim against HP as set out in the schedule attached to healthAlliance’s memorandum dated 4 April 2025. To the extent that 2B costs are shared with the 2B costs of the counterclaim, HP is to pay 50 per cent of those shared costs.
(c)healthAlliance is entitled to $106,746.10 for disbursements. Of that amount, HP is to pay for the disbursements relating to the claim and Capax/Zovy is to pay for disbursements relating to defence of the counterclaim. All defendants are to pay the amount remaining on a joint and several basis.
Tahana J
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