Justitiae Trustee Company Limited v NZF Nominees Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1954

[2021] NZHC 2331

BETWEEN JUSTITIAE TRUSTEE COMPANY LIMITED
Plaintiff

AND

NZF NOMINEES LIMITED

Defendant

Hearing: On the papers

Counsel:

B D Gray QC, R B Hucker and R Selby for the Plaintiff No appearance by or on behalf of the Defendant

D Salmon QC and A van Ammers for Fairlight Forestry Ltd and Clive Bradbury (Interested Parties)
K Glover for Clayton Bradbury (Interested Party)

S Gollin for De Havilland Investments Ltd and Heather Bradbury (Interested Parties)

Judgment:

7 September 2021

JUDGMENT OF GORDON J

[Quantification of costs]

This judgment was delivered by me
on 7 September 2021 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Hucker & Associates, Auckland
West Auckland Law Office, Auckland Harrington Law Limited, Auckland

Counsel:B D Gray QC, Auckland D Salmon QC, Auckland

JUSTITIAE TRUSTEE CO LTD v NZF NOMINEES LTD [2021] NZHC 2331 [7 September 2021]

[1] On 30 June 2021 I gave a judgment awarding costs (the costs judgment) to Clive Bradbury, Fairlight Forestry Ltd (FFL), Clayton Bradbury, Heather Bradbury and De Havilland Investments Ltd (DHIL) (together the Bradbury parties) against the plaintiff, Justitiae Trustee Co Ltd (Justitiae).1

[2] I directed the Bradbury parties to file memoranda setting out in a single schedule their calculations based on the costs judgment.2

[3]They have now done so.

[4] Justitiae then filed a memorandum taking issue with a large number of items in the schedules filed by the Bradbury parties. It was not open to Justitiae to do so. In the costs judgment I accepted that the items claimed in the original schedules annexed to the submissions for the Bradbury parties, itemising the steps taken in the proceeding, were all properly claimed.3 Justitiae had said in its original submissions:
The Plaintiff accepts that the Defendants are entitled to costs. With one exception the Plaintiff agrees with the steps for which the Defendants seek costs.4

[5] The new schedules filed by the Bradbury parties at the Court’s direction following the costs judgment were simply a recompilation of the schedules previously filed in support of the costs application. There were no new items claimed. The time for Justitiae to make the submissions regarding items claimed, was when it responded to the applications for costs by the Bradbury parties, not after the costs judgment accepting all items claimed was issued.

[6] In any event, Justitiae has now appealed the costs judgment (and the substantive judgment in Justitiae Trustees Co Ltd v NZF Nominees Ltd5). It may make the arguments on appeal that it now belatedly seeks to make in this Court. Separately, and after appealing both the substantive judgment and the costs judgment, Justitiae

1      Justitiae Trustee Co Ltd v NZF Nominees Ltd [2021] NZHC 1585.
2 At [95].
3 At [92].
4      Justitiae did not identify the step it disagreed with.
5      Justitiae Trustee Co Ltd v NZF Nominees Ltd [2021] NZHC 659.

applied for recall of both judgments. I have given a decision refusing the application for recall.6

[7] Further to the costs judgment, I make an order that Justitiae pay costs and disbursements quantified as follows:

(a)Costs of $73,851 in favour of Clive Bradbury and Fairlight Forestry Ltd. Justitiae is also to pay disbursements of $466.84 to Clive Bradbury and Fairlight Forestry Ltd in terms of the order in the costs judgment;7 and

(b)(i) Costs of $36,925.50 in favour of Clayton Bradbury under the High Court Rules. Justitiae is also to pay disbursements of
$550 to Clayton Bradbury in terms of the order in the costs judgment8; and

(ii)Costs of $34,744.01 also in favour of Clayton Bradbury (in addition to the sum referred to in [7](b)(i) above);

(c)Costs of $60,807.65 in favour of Heather Bradbury and De Havilland Investments Ltd. Justitiae is also to pay disbursements of $660 to Heather Bradbury and De Havilland Investments Ltd in terms of the order in the costs judgment.9

Gordon J

6      Justitiae Trustee Co Ltd v NZF Nominees Ltd [2021] NZHC2323.
7      At [94](e).
8      At [94](e).
9      At [94](e).

In the case of Justitiae Trustee Company Limited v NZF Nominees Limited, the dispute involved costs related to a previous judgment in which the court awarded costs to various parties. The High Court of New Zealand was tasked with quantifying the costs awarded and determining who was liable to pay them. The plaintiff, Justitiae Trustee Company Limited, contested certain items in the schedules of costs filed by the Bradbury parties, who were the successful claimants in the previous judgment. Justitiae had previously accepted most of the costs claimed by the Bradbury parties but later disputed many of these items after the costs judgment was issued.

The court had to decide whether Justitiae was entitled to challenge the costs schedules filed by the Bradbury parties after the costs judgment was issued. The court held that Justitiae was not entitled to do so, as the time for challenging the costs had passed when it had already accepted most of the costs claimed. The court emphasized that Justitiae's opportunity to contest the costs was during the original costs application, not after the judgment accepting those costs had been made. Furthermore, Justitiae had already appealed the substantive judgment and the costs judgment, providing an alternative avenue to argue its position.

The court ruled that Justitiae was liable to pay the quantified costs to the Bradbury parties. Specifically, Justitiae was ordered to pay $73,851 to Clive Bradbury and Fairlight Forestry Ltd, $36,925.50 to Clayton Bradbury, an additional $34,744.01 to Clayton Bradbury, and $60,807.65 to Heather Bradbury and De Havilland Investments Ltd. Justitiae was also required to pay additional disbursements to these parties as per the previous order. The court refused Justitiae's application to recall the costs judgment, reinforcing the finality of the previous decision regarding the costs awarded.

In conclusion, the court confirmed that Justitiae was liable to pay the costs as quantified and ordered it to do so without further delay. The court's decision underscored the importance of contesting costs during the appropriate stage of litigation and the finality of judgments once they are issued.

CaseChat Overview and Summary

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Legal Principle Established