Hi-Tec Property Developments Limited v Phi Construction Limited

[2020] NZHC 3033

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-000093

[2020] NZHC 3033

BETWEEN

HI-TEC PROPERTY DEVELOPMENTS LIMITED
Plaintiff

AND

PHI CONSTRUCTION LIMITED

First Defendant/First Counterclaim Plaintiff

AND

ICLP LIMITED

Second Defendant/Second Counterclaim Plaintiff

AND

STEVEN JOHN PALMER

Counterclaim Defendant

Hearing:

On the papers

Counsel:

E J Grove for the Plaintiff

W A McCartney for the First and Second Defendants

Judgment:

17 November 2020

JUDGMENT OF CAMPBELL J

[costs]

This judgment was delivered by me on 17 November 2020 at 11.00am

Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Lateral Lawyers, Auckland Eden Chambers, Auckland Duncan King Law, Auckland

HI-TEC PROPERTY DEVELOPMENTS LIMITED v PHI CONSTRUCTION LIMITED [costs] [2020] NZHC

3033 [17 November 2020]

Introduction

[1]                 My judgment dated 15 October 2020 dealt with two applications for security for costs.1 The parties have been unable to agree costs on those applications. Counsel have filed (commendably brief) memoranda.

[2]                 The plaintiff is entitled to costs on its application. However, the defendants consented, before the plaintiff filed submissions, to the order sought by the plaintiff. The plaintiff is therefore entitled only to the costs for filing the application and the filing fee itself. Mr McCartney, for the defendants, has calculated this as $2,466.28. Mr Grove, for the plaintiff, has not taken any issue with that calculation.

[3]                 The defendants are entitled to costs on their application. Merely as a starting point, I agree with the items and disbursements set out in Mr McCartney’s memorandum. These come to $8,006.75.

[4]                 Mr Grove has not taken any issue with those items and disbursements as such. But he says that costs on the two applications should lie where they fall. This is because the defendants sought security of $90,000, the plaintiff made clear in its notice of opposition that it was prepared to pay $30,000, and the plaintiff’s position was largely vindicated by my judgment (which ordered security in the sum of $40,000).

[5]                 Mr McCartney anticipated such a submission. He said that while the defendants succeeded on a lesser amount than was claimed, partial success is still success.2 That is true. But partial success can nonetheless be a reason for reducing costs under r 14.7 of the High Court Rules 2016. Were it not for the matter that I mention next, the appropriate reduction would have been to disallow items 24–26 (written submissions, preparing bundle, and appearance at the hearing).

[6]                 The plaintiff was very late in filing and serving its notice of opposition to the defendants’ application, and its affidavits in support. By the time it did so the defendants had already filed submissions and a bundle. The defendants had therefore

1      Hi-Tec Property Developments Ltd v PHI Construction Ltd [2020] NZHC 2719.

2      Citing Andrew Beck and others (ed) McGechan on Procedure (online loose leafed, Thomson Reuters) at [HR 14.2.01].

been put to the expense of those steps before the plaintiff made clear in its notice of opposition that it was prepared to pay security of $30,000. The defendants then had to file further submissions and prepare a new bundle. In these circumstances it is appropriate that, notwithstanding the matters set out in paragraphs [4] and [5], the defendants be awarded costs for written submissions and preparing the bundle (items 24 and 25).

[7]                 The defendants are therefore entitled to costs for the items and disbursements set out in Mr McCartney’s memorandum, except for appearance at the hearing (item 26). These come to $7,409.25.

Result

[8]I award costs of $2,466.28 to the plaintiff on its application.

[9]I award costs of $7,409.25 to the defendants on their application.

[10]             These two costs awards are to be set off against each other, in accordance with r 14.17.

Campbell J