HOW SOLUTIONS LIMITED (formerly HO WILES LIMITED) BARS LEAKS NZ LIMITED BAR’S LEAKS (AUSTRALIA) PTY LIMITED BAR’S LEAKS AUSTRALIA LP AND BAR’S PRODUCTS INTERNATIONAL LIMITED

[2025] NZHC 1647

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-991

[2025] NZHC 1647

UNDER

the Contractual Remedies Act 1979 the Fair Trading Act 1986

the Trade Marks Act 2002

BETWEEN

HOW SOLUTIONS LIMITED (formerly HO WILES LIMITED)

First Plaintiff

BARS LEAKS NZ LIMITED
Second Plaintiff

BAR’S LEAKS (AUSTRALIA) PTY LIMITED

Third Plaintiff

BAR’S LEAKS AUSTRALIA LP
Fourth Plaintiff

AND

BAR’S PRODUCTS INTERNATIONAL LIMITED

Defendant

Hearing:	(On the papers)
Counsel:	C L Elliott KC and M Ashmore for Plaintiffs J M Glover and L Carter for Defendant
Judgment:	19 June 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

This judgment was delivered by me on 19 June 2025 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

HOW SOLUTIONS LIMITED (formerly HO WILES LIMITED) v BAR’S PRODUCTS INTERNATIONAL LIMITED [2025] NZHC 1647 [19 June 2025]

[1]                 This costs judgment deals with the outstanding costs issues arising from three judgments delivered in 2024. I apologise for the delay in releasing this judgment, as counsels’ costs submissions have only recently been referred to me.

[2]                 Mr Elliott KC, counsel for the plaintiffs, submitted that costs should be approached on  a  2C  basis.  Ms Glover,  counsel  for  BAR’S  Products  International Limited (BPI), says 2B is appropriate. In my view, these were 2B matters. The applications were more a matter of volume than complexity.

[3]                 I requested counsel not address the principles that apply to determining costs in their submissions as they are well known. I note only a few. Costs should follow the event. Costs should be predictable. All matters relating to costs are ultimately at the Court’s discretion, but that discretion is to be exercised within established principles. The overall objective is to achieve an outcome of costs that best meets the interests of justice within established principles. Success on a more limited basis is still success, but a partial failure on some or all points is relevant and can lead to      a reduction in the starting position.1

[4]                 I now turn to the three judgments within which separate applications were dealt with.

Judgment 14 November 20242

HOW Solutions Limited (formerly Ho Wiles Limited) — application for increased security for costs on counterclaim

[5]                 The substantive hearing in this matter was set down for two weeks  in  August 2024 but was vacated when counsel considered a four-week hearing would be required — albeit that was a conservative estimate.

1      See High Court Rules 2016, rs 14.1 and 14.2.

2      Ho Wiles Ltd v Bar’s Products International Ltd [2024] NZHC 3378.

[6]                 HOW sought increased security for costs on the grounds that since security was originally fixed, the case had expanded in scope and complexity. HOW sought that security be increased by $65,000. BPI offered $10,000. I ordered that security be increased by $50,000.3

Costs Ruling

[7]                 HOW was the successful party in respect of its application for increased security for costs.

[8]                 HOW is awarded costs on a 2B basis plus disbursements as fixed by the Registrar.

[9]                 I do not accept the submission for BPI that costs should lie where they fall. HOW was largely successful in its application. It was not a case of HOW seeking an additional $140,000 in security — the increase sought was $65,000 of which HOW achieved $50,000.

[10]The costs calculation is to be based on a quarter-day hearing.

HOW’s application for production of unredacted documents

[11]              Discovery disputes have plagued this proceeding. As this costs judgment will show, many of the disputes between the parties have concerned discovery and in particular, redactions and confidentiality.

[12]              BPI, in its counterclaim, alleges that over an extended period of time, HOW deliberately neglected BAR’s LEAKS’ products. HOW, under its Licence Agreement, was obliged to show a proportionate increase in sales within its territory as compared to the average increase achieved in other territories.

[13]              Accordingly, HOW sought discovery of BPI’s international licensees in order to carry out the comparison. I ordered discovery be provided but the documents provided were heavily redacted.

3 See [12]-[13] and [25].

[14]              I ordered that BPI was to provide unredacted copies of the documents save to the extent that the documents recorded profits made by those licensees and distributors which HOW accepted should remain redacted.

Costs Ruling

[15]              As recorded in the 14 November 2024 judgment, HOW was successful in this aspect of its application.4 Accordingly, HOW is awarded costs on a 2B basis, based on a quarter-day hearing in respect of this application together with disbursements as fixed by the Registrar.

HOW’s application to set aside confidentiality

[16]              One of the key arguments in this hearing concerned what is known as the “Rislone Settlement Agreement”. HOW was successful in respect of its application to set aside the claim of confidentiality made by BPI to this document.5

[17]              HOW is entitled to costs in respect of this application on a 2B basis, based on a quarter-day hearing together with disbursements as fixed by the Registrar and I so award.

BPI’s application for discovery

[18]              The same judgment dealt with an application for discovery by BPI. This was an application for further and better discovery alleging confidentiality claims by HOW should be set aside. BPI was largely successful in respect of this application, only failing on some minor issues.

4 At [45].

5 At [64].

[19]              There is an award to BPI in respect of its application for discovery based on  a quarter-day hearing on a 2B basis together with disbursements as fixed by the Registrar.

Judgment 22 May 2024 — discovery6

Discovery sought by HOW

[20]              HOW sought discovery in relation to BPI’s counterclaim that HOW had neglected BAR’s LEAKS’ products. BPI claimed it offered HOW 20 specific products between 1997 and 2012 that HOW did not take up. HOW wanted discovery to confirm BPI was actually in a position to supply those products. I accepted that HOW was entitled to discovery in respect of that point, but not the full breadth of discovery that it had sought, on the basis that is was not proportionate. However, in substance, HOW was successful in obtaining disclosure of this category of documents.

[21]              Ms Glover, counsel for BPI, submits that in fact BPI was successful in respect of this judgment as a whole. I do not accept that submission.

[22]              While the discovery ultimately ordered was less than, and of a different character to that sought by HOW, the rationale for HOW seeking discovery was upheld.

[23]              Similarly, in respect of other aspects of that judgment, HOW was successful in obtaining discovery, but on a more limited basis than sought.

[24]              HOW’s application was not pursued in relation to two categories, but Mr Elliott submits that this was because after the application was made, BPI provided affidavit evidence that the documents did not exist. I consider this aspect to be included in  HOW’s  proposal  that  costs  on  this  application  be  discounted  by  20 per cent.

6      Ho Wiles Ltd v Bar’s Products International Ltd [2024] NZHC 1281.

[25]              Accordingly, in respect of the judgment of 22 May 2024, there is an award of costs to HOW on a 2B basis for a quarter-day hearing less 20 per cent, together with disbursements as fixed by the Registrar.

Discovery sought by BPI

[26]              The judgment of 22 May 2024 also dealt with the discovery application made by BPI. BPI was largely successful in its application.

[27]              Accordingly, there is an award of costs in favour of BPI on a 2B basis, based on a quarter-day hearing, together with disbursements as fixed by the Registrar. BPI’s level of success is such as not to warrant a discount as suggested by Mr Elliott.

[28]              Mr Elliott notes that in respect of some categories, BPI was unsuccessful. That is true. But HOW was directed to provide a fuller explanation as to why documents did not exist.

Judgment 21 November 20247

[29]              The 21 November 2024 judgment concerned BPI’s challenges to claims of confidentiality made by HOW, and the extent of redactions made by HOW.

[30]              As to costs, at the end of the November judgment I said that success had been shared.

[31]              This November judgment is made up of a statement of principle and an 18 page schedule setting out a summary of the parties’ positions in respect of confidentiality. BPI submits it was largely successful in this application and seeks costs on a 2B basis with a 25 per cent discount. Mr Elliott responsibly accepts that position.

7      Ho Wiles Ltd v Bar’s Products International Ltd [2024] NZHC 3493.

[32]              Accordingly, there is an award of costs in favour of BPI on a 2B basis, less 25 per cent together with disbursements as fixed by the Registrar based on a half-day hearing.

Associate Judge Lester

Solicitors:

McVeagh Fleming, Auckland (for Plaintiffs) Woodroffe Lawyers, Auckland (for Defendant)

Copy to counsel:

C L Elliott KC, Barrister, Auckland (for Plaintiffs) J M Glover, Barrister, Auckland (for Defendant)