Kruger v Mason

[2025] NZHC 2740

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2025-463-19

[2025] NZHC 2740

BETWEEN

TAMATI KRUGER, PATRICK McGARVEY, NGATAI RANGIHAU, MERE McLEAN and RUREHE TAYLOR

as trustees of TŪHOE – TE URU TAUMATUA TRUST, the governance entity for Ngāi Tūhoe, Taneatua

First Plaintiff

TŪHOE TRUST CUSTODIAN TRUSTEE COMPANY LIMITED

Second Plaintiff

AND

DONNA MASON

First Defendant

RITCHIE CONTRACTING LIMITED
Second Defendant

Continued …

Hearing:	On the papers
Appearances:	MRG van Alphen Fyfe and B McKinnon for the Plaintiffs D M Fraundorfer for the Second and Third Defendants
Judgment:	19 September 2025

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 19 September 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

KRUGER v MASON [2025] NZHC 2740 [19 September 2025]

Continued …

AND

ALAN MAURICE RITCHIE

Third Defendant

PERSONS UNKNOWN
Fourth Defendants - DISCONTINUED

TANIA MIHINUI
Fifth Defendant

MOTUTERE HAULAGE LIMITED

Sixth Defendant

STORM LOGGING LIMITED

Seventh Defendant

[1]                 Following orders ultimately made by consent on 21 May 2025 discharging a freezing   order   on   the   application   of   the   second   and   third   defendants   (the Ritchie parties) and addressing use of funds in the trust account of their solicitors, Bush Forbes, I urged counsel to confer and seek to agree on costs, and made directions if Court determination of costs was necessary.1

[2]The parties have been unable to agree on costs.

[3]                 In their memorandum of counsel,2  the Ritchie parties seek 2B costs plus a   20 per cent uplift due to the plaintiffs’ conduct, plus disbursements of $71.36.

The total sought was calculated to be $7,725.56.3

[4]                 The plaintiffs oppose an award of costs, submitting that costs should be dealt with in the case, that is, reserved, or alternatively should lie where they fall on the basis that neither party enjoyed complete success.

Applicable principles

[5]                 The applicable costs principles are well settled. One general principle is that costs follow the event, including on interlocutory applications.4 Partial success or success on more limited terms is still success.5

[6]                 Another general principle is that costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required,6 that is, applying the scale in the High Court Rules 2016. So far as possible the determination of costs should be predictable and expeditious.7

1      Kruger v Mason HC Rotorua CIV-2025-463-19, minute dated 21 May 2025 at [6] and [7].

2      Memorandum of counsel dated 12 June 2025. The memorandum addressed other matters, but this judgment addresses only costs.

3      The memorandum applied a daily rate of $2,230 whereas the current 2B daily rate is $2,390. Thus, the total claimed for 2.95 days, including 20% uplift and disbursements would be $8,531.96.

4      High Court Rules 2016, r 14.2(1)(a).

5      Phillips v Heremaia [2025] NZCA 394 at [28] and n 29; citing Weaver v Auckland Council [2017] NZCA 330, [2017] 24 PRNZ 379 at [26]. Partial failure can be addressed by reducing costs in accordance with r 14.7(d) of the High Court Rules 2016.

6      High Court Rules, r 14.2(1)(c).

7      Rule 14.2(1)(g).

[7]                 As to expedition, costs on an interlocutory application should not be reserved unless there are special reasons.8

[8]                 As an exception to the predictability of scale costs, r 14.6 provides for increased (or indemnity) costs in prescribed circumstances. Rule 14.6(3) relevantly provides:

…

(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

…

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

…

(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.

[9]                 As the Court of Appeal said in Bradbury v Westpac Banking Corp in the context of r 14.6(3)(b)(ii), increased costs may be ordered where there is failure by the paying party to act reasonably.9

[10]              Rule 14.6(3)(d) also requires specific circumstances overcoming the principle that the determination of costs should be predictable and expeditious.

[11]              The onus is on an applicant for increased costs to persuade the Court that such an award is justified.10 Further, in a case where the trial or interlocutory application

8      Rule 14.8(1).

9      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27](b).

10 Phillips v Heremaia [2025] NZCA 394 at [16]; citing SPAK  (1996) Ltd v LeRoy  [2022] NZCA 564, (2022) 23 NZCPR 769 at [189]; and Corrick v Silich [2018] NZCA 221, [2018] NZCCLR 21 at [14].

is not completed, increased costs may only be awarded where the lack of merit is both obvious and incontrovertible.11

Discussion

[12]              There are no special reasons to reserve the costs of the Ritchie parties’ application to discharge the freezing order.

[13]              The  Ritchie  parties’  application  to  discharge   was   largely   successful. As indicated, partial success or success on more limited terms is still success.  Subject to consideration of that limited success and the plaintiffs’ ultimate consent below, I consider the Ritchie parties are entitled to costs. Accepting that the plaintiffs had concerns about the February 2025 transfer of approximately $33,000 from the Ritchie parties’ bank accounts, this preceded transfer into the Bush Forbes’ trust account and the application to discharge the freezing order. In the context of the discharge application, it was unnecessary for the plaintiffs to insist the funds be transferred to Buddle Findlay’s trust account. Nor was it necessary for the plaintiffs to seek to retain the freezing order rather than seek varied or further preservation orders to address the plaintiffs’ proprietary claim.

[14]              As to increased costs, the hearing of the application to discharge the freezing order should not have been necessary. As indicated in my minute of 21 May 2025, before the hearing counsel had essentially agreed that the freezing order should be discharged. However, they disagreed as to the terms of a replacement order relating to the funds remaining in Bush Forbes’ trust account. While I consider the plaintiffs bear more than their fair share of responsibility for the unnecessary hearing, I am not persuaded that increased costs are justified. The order sought by the Ritchie parties, and their later offer to resolve the application, were not in exactly the same terms as the  orders  to  which  the  plaintiffs  ultimately  consented  during   the   hearing. The application sought that the funds held in Bush Forbes’ trust account continue to be held until further order of the Court except for legal fees generally, whereas the consent order ultimately limited use of the funds to legal expenses relating to the

11     N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108] (in relation to a trial rather than interlocutory application).

freezing order. Further, the application initially sought discharge of the freezing and injunctive orders going beyond the discharge sought at the hearing.

[15]              Indeed, for these reasons, I consider that 2B costs should be reduced under     r 14.7 by one-third, to $4,700.33.12

[16]              I urge the parties and counsel to focus on the real issues in dispute in this proceeding.

Result

[17]              The plaintiffs are to pay the second and third defendants’ costs and disbursements of $4,771.69.

Gault J

Solicitors / Counsel:

Ms MRG van Alphen Fyfe (counsel for the plaintiffs), Barrister, Wellington

Mr P Beverley and Ms B McKinnon (plaintiffs’ instructing solicitor), Buddle Findlay, Wellington Mr O Collette-Moxon, Barrister, Auckland

Mr D Gubb (first defendant’s instructing solicitor), iCLAW | The Mount Lawyers, Mt Maunganui Mr D M Fraundorfer and Ms HJO Lewis, Fraundorfer Ltd, Tauranga

Ms N J Scott (second and third defendants’ instructing solicitor), Bush Forbes, Tauranga

12     2.95 days x $2,390 – 1/3 = $,4700.33.