Jellick v Perrett

[2025] NZHC 2405

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2025-488-000001 [2025] NZHC 2405

BETWEEN  PAUL GREGORY JELLICK and

JELLICK TRUSTEE LIMITED as Trustees

of the Jellick Trust Applicants

ANDJANETTE MARIE PERRETT NEIL FRANCIS PERRETT CARLA ROSE PERRETT

Respondents

Hearing:                   On the papers

Appearances:           R Bowden for the Applicants

J Hooper for the Respondents

Judgment:                22 August 2025

JUDGMENT OF WALKER J

[Costs]

This judgment was delivered by me on 22 August 2025 at 2 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

MWIS, Whangārei Edmonds Judd, Te Awamutu

JELLICK v PERRETT [2025] NZHC 2405 [22 August 2025]

[1]    This judgment determines the question of costs following the unsuccessful application to remove (on an interim basis) the respondents from operating a farm jointly owned by the parties.

[2]    The respondents apply for costs as the successful party to the application. They rely on the fundamental principle that costs follow the event. They seek 2B and 2C costs for different steps, totalling $19,837 and disbursements of $1,662.48. In addition, they seek a 50 per cent uplift on costs ($9,918.50).

[3]They say:

(a)They  invited  the  applicants   to   withdraw   their   application   on 11 February 2025.

(b)The applicants changed their position after filing the application following which the  respondents  made  a  “Calderbank”  offer  on  24 February 2025 offering to agree to the sale of the farm but continuing to operate the farm/stock under a leasing arrangement until then.

(c)The Court is invited to take the offer into account in determining the time allocations and request for increased costs.

(d)A band C time allocation is appropriate for certain steps:

(i)Item 23: Preparation of a notice of opposition and affidavits because of the unsatisfactory way the applicants referred to but did not annex exhibits to their affidavits.

(ii)Filing of a further late affidavit of Mr Manjala and additional authorities shortly before the hearing.

(iii)Item 36: Non-compliance with timetabling directions for preparation of the case bundle and then inclusion of additional material not properly produced as exhibits to affidavits in a

procedurally irregular fashion leading to evidential challenges and additional memoranda.

[4]The applicants respond as follows:

(a)The respondents were not the dominantly successful party; are not entitled to costs or costs should be reserved pending the final arbitral outcome.

(b)There was no effective “Calderbank offer”.

(c)The time allocations claimed are incorrect.

(d)The respondents’ application to exclude evidence was opportunistic and no prejudice made out.

Discussion

[5]    All matters relating to costs are discretionary.1 The discretion must be exercised on a principled basis and, so far as possible, the determination of costs should be predictable and expeditious.2 The usual rule is that costs follow the event; the party who fails with respect to a proceeding (including an application) pays costs to the successful party.3 However, it must not be overlooked that the overall objective of costs determinations is to achieve an outcome that best meets the interests of justice.

[6]    Under r 14.6(3) of the High Court Rules (HCR), a court may make an order for a party to pay increased costs if:

(3)The court may order a party to pay increased costs if—

(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—

1      High Court Rules 2016, r 14.1.

2      Rule 14.2(1)(g).

3      Rule 14.2(1)(a).

(i)failing to comply with these rules or with a direction of the court; or

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)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; or

(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or

(d)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.

[7]    Generally, increased costs may be ordered where there is a failure by the paying party to act reasonably.4

[8]    I am not persuaded that the situation here is analogous to the position in respect of summary judgment applications where costs of an unsuccessful application are held over to the substantive determination. The applicants sought interim relief to support arbitral proceedings. They could have done so before an arbitrator so that costs could be dealt with on a collective basis. They did not. Having opted to file court proceedings, the position is no different from any interlocutory proceeding.

[9]    It follows that the respondents are entitled to costs and the issue ought not be deferred to arbitral proceedings which, by now, may have been determined. The question is on what basis costs should be awarded and how much.

4      Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [27].

[10]   There is no challenge to categorisation as a Category 2 proceeding but the applicants take issue with the claims for certain steps. They say that only the following steps are appropriately claimed:

(a)23       Filing opposition to interlocutory application.

(b)11       Filing memorandum for first case conference.

(c)12       Appearance at call-over.

(d)24       Preparation of written submissions.

(e)26       Appearance at hearing.

[11]If that position is accepted, 2B costs amount to $8,843.

[12]   The contest is in respect of whether the opposition to the interlocutory application is properly assessable as 2B or 2C; whether preparation for hearing is claimable and whether the application for determination of evidential matters is a claimable step and, if so, on what basis.

[13]   In my view, the preparation of evidence in opposition is claimable yet appears to be wrapped within the claim for preparation for the one-day hearing. I accept that more time was required on the part of the respondents due to the irregular way exhibits were produced by the applicants. I allow an increased claim for filing the notice of opposition, being an uplift of 75 percent on 2B costs or $2,509.

[14]   I allow the claim for preparation for a one-day hearing at $4,780. I decline the claim in respect of the procedural and evidential challenges.

[15]The result is 2B costs (with a discrete uplift for one step) of $15,176.50.

[16]   I decline to uplift this award by 50 per cent as the respondents seek. Apart from the procedural irregularities, the applicants had a meritorious case on the facts as presented in this court. The Calderbank offer was a complex proposal which, by virtue

of having the respondents continue to operate the farm/stock, did not provide the relief which the applicants were seeking. I do not consider that it supports increased costs. The failure to obtain interim relief was not by reason of the underlying substantive issues. This is not a case where it is appropriate to depart from scale costs (save for the one increase noted) which I consider to be a fair measure of recoverable costs.

[17]The disbursements claimed by the respondents are in order.

Result

[18]I make an order for costs against the applicants in the sum of $16,836.98.

[19]   Finally, I note that the various costs memoranda were filed in the Registry many months ago. Because of work pressures in the Registry, they were not brought to my attention then. I apologise to counsel and the parties for that delay.

............................................................

Walker J