Hoyle v Hoyle

[2017] NZHC 1922

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-454-910 [2017] NZHC 1922

UNDER

the Copyright Act 1994

IN THE MATTER OF

Copyright infringement

BETWEEN

DAVID STANLEY HOYLE First Plaintiff

AND

TRANSPREAD INTERNATIONAL LIMITED

Second Plaintiff

AND

PAUL DAVID HOYLE Defendant

On thepapers:
Counsel:	N J Scampion and P D M Johns for First and Second Plaintiffs P Dengate Thrush and G M Richards for Defendant
Judgment:	11 August 2017

JUDGMENT OF CLARK J (COSTS)

The substantive actions

[1]      In my judgment delivered on 19 December 2016 the plaintiffs were held to have established infringement of the first plaintiff’s copyright and four of the defendant’s five counterclaims were dismissed.1   I noted the plaintiffs’ entitlement to costs.     In  an  earlier  judgment  I  made  an  order  upholding  the  defendant’s counterclaim  and  revoking  the  patent  which  the  first  plaintiff  alleged  had  been

infringed.2   Costs were reserved.

1      Hoyle v Hoyle [2016] NZHC 3120 [Infringement Decision].

2      Hoyle v Hoyle [2015] NZHC 3282 [Revocation Decision].

HOYLE v HOYLE [2017] NZHC 1922 [11 August 2017]

The claims for costs

[2]      The parties contest strongly each other’s claims for costs.  A total of seven memoranda have been filed, the last in June 2017.  The plaintiffs claim $270,865.00 being costs of $193,475.00 uplifted by 40 per cent “in recognition of the delay and unnecessary time and costs incurred as a direct result of the defendant’s actions throughout the course of the proceeding”.  The plaintiffs seek, also, disbursements totalling $39,614.58.

[3]      The defendant’s position is that a decision on costs should be deferred until determination of the defendant’s appeal against the infringement decision.   But if costs are to be determined the defendant says the plaintiffs’ assessment of scale costs must be discounted by 50 per cent to reflect the abandonment of the revocation cause of action.  The defendant claims costs of $62,826.00 for his successful revocation counterclaim and disbursements totalling $1,347.13.

[4]      Each party has annexed to written submissions a schedule itemising steps taken throughout the long life of the proceeding and the disbursements claimed.

[5]      The plaintiffs’ claim is calculated on a 2B basis for most steps but in respect of  two  affidavits  of  documents  and  inspection  of  documents  in  two  of  the defendant’s affidavits, costs are claimed on a 2C basis.

[6]      The defendant claims his “full costs” for his successful counterclaim seeking revocation of the first plaintiff’s patent on the basis the counterclaim was unreasonably defended.

Applicable Principles

[7]     The principles governing the exercise of the court’s discretion are well established.  Although costs are at the discretion of the court3  the discretion is not unfettered.   In particular the court’s discretion is qualified by rr 14.2–14.17 of the

High Court Rules 2016.  There is a strong implication that the court is to apply the

3      High Court Rules 2016, r 14.1.

costs regime in the absence of some reason to the contrary.4  Any departure must be a considered  and particularised  exercise of the  court’s discretion.5     The following principles have particular application to the costs claims made…