Kevin O'Connor Trustee Limited v National Personnel Limited

[2025] NZHC 146

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1945

[2025] NZHC 146

BETWEEN

KEVIN O’CONNOR TRUSTEE LIMITED

as trustee of the KEVIN O’CONNOR BUSINESS TRUST
Plaintiff/1st Counterclaim Defendant

AND

NATIONAL PERSONNEL LIMITED

First Defendant/2nd Counterclaim Defendant

PETER JAMES O’CONNOR
Second Defendant/1st Counterclaim Plaintiff

PETER JAMES O’CONNOR, RAEWYN ISOBEL MOENGAROA O’CONNOR and

MARTIN SINCLAIR POWLEY

as trustees of the MAUNGA TANIWHA TRUST

Third Defendants/2nd Counterclaim Plaintiffs

/ … Carried forward on next page …

Hearing:	On the papers
Counsel:	Guy Tompkins for the Second and Third Defendants Andrew Cook for the Sixth Counterclaim Defendant
Judgment:	17 February 2025

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 17 February 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

KEVIN O’CONNOR TRUSTEE LIMITED as trustee of the KEVIN O’CONNOR BUSINESS TRUST v NATIONAL PERSONNEL LIMITED [2025] NZHC 146 [14 February 2025]

ANDSTEPHEN JAMES COX, XUEFEN YI and

SIUOLA EVANGELIA LATU

as Executors of the Estate of KEVIN EDMUND O’CONNOR

Third Counterclaim Defendants

AND              CORAL BUSINESS DEVELOPMENT

LIMITED as trustee of the

CORAL BUSINESS DEVELOPMENT TRUST

Fourth Counterclaim Defendant

AND              GGAB LIMITED

Fifth Counterclaim Defendant

AND              COX PROFESSIONAL SERVICES LIMITED

Sixth Counterclaim Defendant

AND              KEVIN O’OCONNOR TRUSTEE LIMITED

as trustee of the LAKSHMI TRUST Seventh Counterclaim Defendant

Introduction

[1]    Mr Cook, counsel for the sixth counterclaim defendant, Cox Professional Services Ltd (CPS), filed a memorandum dated 10 December 2024 seeking costs upon the discontinuance by the counterclaim plaintiffs, the second defendant Peter James O’Connor,  and  the  third  defendant  the  Maunga  Taniwha  Trust   (together Peter’s Interests) of their claim against CPS.

[2]    Mr Tompkins, counsel for Peter’s Interests filed a memorandum in response dated 10 December 2024, and a further memorandum dated 17 December 2024.     Mr Cook filed a reply dated 18 December 2024 and Mr Tompkins filed a reply dated 19 December 2024.

[3]    The procedural background is set out at [2] of Mr Cook’s  memorandum of  10 December 2024.

CPS’ position

[4]    Mr Cook submits that CPS should be entitled to costs against Peter’s Interests for the following reasons:

(a)rule 15.23 of the High Court Rules 2016, provides that a plaintiff must pay costs to a defendant of and incidental to the proceedings, and including the discontinuance, unless the defendant agrees otherwise;

(b)CPS incurred costs of instructing and briefing counsel on the basis that a statement of defence would be required no later than 17 November 2023. As noted in the procedural history, the only reason the statement of defence was not filed was because the parties agreed to defer further steps in the proceeding pending a mediation;

(c)it is immaterial that the statement of defence was not actually filed. The work was done as it was required to be, and the costs were incurred. The authorities establish that where the Interests of justice require it, there is no impediment to awarding costs on a step taken where a document was not ultimately filed, relying on Griffin Trust AG v Global Oil Services Ltd.1

Position of Peter’s Interests

[5]    Mr Tompkins in his memorandum of 17 December 2024 opposes CPS’ application for costs on the basis that:

(a)no evidence of costs incurred (such as invoices or time records) has been provided;

(b)the first correspondence CPS has had with the Court in this proceeding is their memorandum seeking costs;

1      Griffin Trust AG v Global Oil Services Ltd [2019] NZHC 3418 at [27].

(c)no steps have been taken in the proceeding from which the expenses purportedly incurred could be calculated, or from which scale costs could be awarded, increased or ruled as incidental;

(d)CPS was put on notice shortly after the initial claim was served that the proceeding was stayed. CPS deferred taking any steps. For the amended pleading, Peter’s Interests communicated that they were discontinuing their claim against CPS at the same time as the claim was filed. If costs have been incurred in those defences it was done so speculatively.

[6]    Mr Tompkins sought to distinguish the Griffin Trust AG case on the basis that in that case Associate Judge Bell had declined to award scale costs for work undertaken by the defendant to prepare the commencement of their defence and for the affidavit evidence that was prepared but not filed, with the Associate Judge stating:

… it is not customary to allow for steps that do not result in a document being filed in court.2

[7]    Mr Tompkins submits that in the Griffin case the costs of preparing the statement of defence prepared were assessed and awarded as increased costs on the awarded scale costs under r 14.6(3), and the Associate Judge characterised these claims as “extras” to  be considered as  a  claim  for increased costs  under r 14.6.  Mr Tompkins submits that the important distinction is that in Griffin the evidence of work undertaken on documents prepared but not filed justified an increase on scale costs for steps that had been taken, and there was no award of scale costs for work done on steps that did not result in a document being filed in Court.

[8]    Mr Cook’s response on the issue of the applicability of the Griffin case is that Mr Tompkins’ attempt to distinguish the Griffin case misses the point. He submits regardless of whether the claim is characterised as one for scale costs or one by analogy to scale costs, the point is that CPS has been put to significant cost that well exceeds scale costs. He submits that CPS, having been involved in the litigation

2 Above, n 1 at [24].

unnecessarily, the interests of justice require a payment of costs, and the Court’s flexible and discretionary costs jurisdiction allows that.

Result

[9]    I am of the view that CPS is entitled to scale costs as sought and it is also entitled to costs on costs, to the extent of the two memoranda filed by Mr Cook, and as sought in his memorandum of 18 December 2024. The reasons for this view are:

(a)it is clear from the affidavit of Sara Ellen Cameron, dated 18 December 2024, that work in respect of CPS’ statement of defence was indeed done. I am of the view that filing an affidavit should not have been necessary and, as pointed out by Mr Cook, counsel is an officer of the Court and the memorandum stating it had been done should have been sufficient;

(b)I do not accept Mr Tompkins’ point that costs cannot be awarded in respect of work which does not result in a document being filed in Court. Nor do I accept his argument that under the authority of the Griffin case, costs can only be awarded in respect of work done which does not result in a document filed in Court as “increased costs” under r 14.6(3) as an adjunct to work done which was covered by scale costs for documents which are filed in Court.  In my view the discretion in  r 14 is sufficient for costs to be awarded for work done when no document is filed in Court provided that work was necessary. In the circumstances CPS, was justified in carrying out the work in respect of the statement of defence and I award costs accordingly.

(c)Given the nature of the exchange of memoranda between Mr Tompkins and Mr Cook, and particularly the suggestion by Mr Tompkins that work had not been carried out on behalf of CPS, in my view an award of costs on costs in respect of Mr Cook’s memoranda as claimed is appropriate.

Orders

[10]   I order that Peter James O’Connor in his personal capacity and Peter James O’Connor, Raewyn Isobel Moengaroa O’Connor and Martin Sinclair Powley, as trustees of the Maunga Taniwha Trust, are to pay Cox Professional Services Limited the sum of $6,992.00, being costs assessed on a 2B basis in preparation for a defence and preparation of Mr Cook’s memoranda of 10 December 2024 and 18 December 2024.

……………………………… Associate Judge Taylor

Solicitors:

Wilson Harle (Guy N M Tompkins/Portia E Baine/Shan Pearson), Auckland,

for the 2nd and 3rd Defendants and 1st and 2nd Counterclaim Plaintiffs. Cook Morris Quinn (Andrew Cook), Westgate, Auckland, for the 6th Counterclaim Defendant