Mathias v Toka Tū Ake - Natural Hazards Commission
[2025] NZHC 1887
•10 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-009-2441 [2025] NZHC 1887
BETWEEN CAROL ANN MATHIAS
Plaintiff
ANDTOKA TŪ AKE – NATURAL HAZARDS COMMISSION
Defendant
Hearing: On the papers
Counsel: G D R Shand for Plaintiff
J A Tocher, E R Gatenby and C J Curran for Defendant
Judgment: 10 July 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN (COSTS)
This judgment was delivered by me on 10 July 2025 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
MATHIAS v TOKA TŪ AKE – NATURAL HAZARDS COMMISSION [2025] NZHC 1887 [10 July 2025]
[1]In a judgment of 15 May 2025, I resolved several issues including:1
(a)the dates of trial;
(b)applications by NHC:
(i)to recategorise the proceeding for cost purposes;
(ii)for security for costs; and
(iii)that Ms Mathias provide further discovery.
[2] NHC was successful in all respects and is entitled to costs. I have received memoranda from counsel on the quantum of such costs.
[3] NHC’s counsel provided a schedule of costs and disbursements sought, totalling $37,703.44 (attached as Schedule A). The costs claim comprised:
(a)scale 3B costs of $26,475.00;
(b)increased costs on the discovery application of $4,765.50; and
(c)reasonable disbursements of $6,462.94.
[4]The plaintiff challenges the claims made in the following respects.
[5] First, the plaintiff says costs should be awarded on a category 2 basis as the category 3 classification only applies since 15 May 2025, being the date of my judgment.
[6] My judgment did not deal with the date from which the reclassification of the proceeding should apply. I note that cases have taken different approaches in relation to this. There are, for instance, cases where the reclassification has been ordered only
1 Mathias v Toka Tū Ake [2025] NZHC 1170.
from a particular stage of a proceeding.2 It was not my intention that the reclassification would apply to steps taken prior to the date of my judgment. I award costs on a category 2 basis.
[7] NHC claims for two counsel which the plaintiff says was not required in respect to a hearing of interlocutory applications of less than one day. It was noted there were no live witnesses, and the affidavit evidence was minimal with few important documents. It is also noted that Ms Mathias proceeded with only one counsel. Mr Shand submits that making an award for second counsel would be contrary to the principles of pt 14 of the High Court Rules 2016 (the Rules), and an award should not encourage multiplicity of lawyers resulting in increased costs for participants. Mr Shand also notes that to make an allowance for second counsel has flow-on effects in respect to disbursements for airfares and accommodation.
[8] In my view, second counsel was not reasonably necessary given the nature of the applications which, except in relation to security for costs, raised no difficult issues. All matters could have been comfortably dealt with by Mr Curran. I make no allowance for second counsel.
[9] Mr Shand says NHC filed and served only one set of submissions, as did Ms Mathias. He says whilst NHC’s submissions were effectively 20 pages of text, more than 17 pages concerned the security for costs application with only a very small balance in respect to discovery. Mr Shand says on that basis one award for submissions should apply.
[10] There is some merit in the plaintiff’s submission, but it is not appropriate that no allowance be made for the preparation of submissions in relation to the discovery application. In respect of that step, I award costs on a scale A basis.
[11] Similarly, Mr Shand says NHC prepared only a single bundle for the hearing which was not extensive and the documents concerning discovery were minimal so there should be only one award for bundle preparation. I agree with Mr Shand that there should be just one allowance for the bundle.
2 J v J [2013] NZHC 1822.
[12] Mr Shand says NHC seeks an award of $706 for sealing the judgment and that any amounts for sealing are enforcement steps, not part of the judgment, and as there have been no enforcement issues previously it would be wrong to make any award on this basis. I do not see any merit in that submission. The judgment should be sealed as required by the Rules and as a matter of good practise. The sealing of a judgment also has important consequences, such as in relation to the ability to recall the judgment and for enforcement purposes.
[13] NHC also seeks an award of costs on its costs application. Mr Shand submits such an award is unusual, and there are no special circumstances that would justify it in this case. I accept that there are instances where Judges have expressed the view that it is unusual to award costs on cost applications. I do not accept that view, and can see no reason to justify it. The better argument from the plaintiff’s perspective is that she has raised arguments against some of the amounts claimed by the defendant which have been upheld. In my view, both parties have had success in relation to issues of costs and so no costs should be awarded in respect to this step in the proceeding.
[14] NHC has made an application for increased costs in relation to the discovery application which is objected to by the plaintiff. Mr Shand says increased costs should not be awarded as NHC had been told many times that there were no more documents, Ms Mathias provided a verified list and counsel answered queries and provided clarification. He says the discovery component of the application was minimal.
[15] To my mind there is a clear case for increased costs under r 14.6(3)(b)(iv), although I consider only a 25 per cent uplift is warranted. NHC should not have had to make the application for discovery, which was forced upon it by the failure by the plaintiff’s counsel to engage on discovery issues. I recorded this in my judgment when I said:3
[75] It is unacceptable that Ms Mathias’s lawyers did not respond to correspondence concerning discovery issues, forcing NHC to make an application for further discovery and then to oppose the application without evidence. Such failure to engage is a waste of the parties’ and the Court’s resources. ...
3 Mathias v Toka Tū Ake, above n 1.
[16] The result is that NHC is awarded costs and disbursements of the applications determined in my judgment of 15 May 2025 as set out in schedule B.
Timetable
[17] Following my judgment I proposed a timetable to take the case to trial. Counsel have provided their views on the proposed timetable. The plaintiff’s view is that she would prefer earlier dates and an earlier trial. Alternative dates were proposed for expert conferral and the filing of a joint experts’ report.
[18] NHC’s position is that the general scheme of the proposed timetable is appropriate. However, NHC says it is now too early to commence the pre-trial timetable because the plaintiff has sought leave to appeal and a stay of the 15 May 2025 judgment, including in relation to security for costs, and it would be unjust to expect it to be required to prepare its evidence on an unsecured basis. NHC also says that there are outstanding discovery issues. NHC submits the Court should allow a further three months before the close of pleadings date and the commencement of pre- trial steps.
[19] I agree with NHC. The plaintiff is entitled to apply for leave to appeal the 15 May 2025 judgment but must accept that the consequence of that will be to delay steps being taken in the proceeding. The approach the plaintiff has taken may also prevent the parties taking advantage of earlier trial dates that might become available, which was an aim of my proposed timetable directions.4
[20] I also agree with NHC that it cannot be expected in the circumstances of this case, which involves a litigation funder with limited experience in such activities, to undertake trial preparation until the position regarding security for costs is resolved. This is particularly so where the litigation funder has provided no evidence of its ability to fund the litigation to trial.
4 Mathias v Toka Tū Ake, above n 1, at [85].
[21]For those reasons the timetable directions I make are as set out below.
Result
Costs
[22] NHC is awarded costs on the applications determined in my judgment of 15 May 2025 in the amount of $12,607.25 and disbursements of $4,777.17.
Timetable
[23]The close of pleadings date shall be 3 October 2025.
[24]I direct by:
(a)3.30 pm on 28 November 2025 — counsel for the plaintiff to serve, and immediately notify the Registrar in writing that the following have been served, upon whom, and the date of service:
(i)plaintiff’s briefs of evidence;
(ii)plaintiff’s common bundle nominations, and
(iii)plaintiff’s draft chronology.
(b)3.30 pm on 20 February 2026 — counsel for the defendant to serve, and immediately notify the Registrar in writing that the following have been served, upon whom, and the date of service:
(i)defendant’s briefs of evidence;
(ii)defendant’s changes/additions to common bundle nominations (if any);
(iii)defendant’s marked-up amended chronology (if any).
(c)3.30 pm on 19 March 2026 — counsel for the plaintiff to serve any reply briefs.
(d)3.30 pm on 23 April 2026 — counsel to file a joint memorandum identifying:
(i)the names of the witnesses for each party, whether they are factual or expert, and the pages of their briefs/narrative pages and subsequent pages;
(ii)counsel’s estimate of the total time for the briefs to be read;
(iii)counsel’s estimate of cross-examination time;
(iv)counsel’s estimate of the time for opening and closing submissions;
(v)a summary of counsel’s total time estimate and confirmation (or otherwise) that the trial allocation remains appropriate (or if not, in what regard?)
(f)20 May 2026 — the experts to confer on the subject-matter of their reports and within their respective areas of expertise in accordance with the attached Protocols for Expert Conferral (Schedule C);
(g)3.30 pm on 19 June 2026 — the experts to file and serve a joint witness statement on their agreement/disagreements adopting the format of the attached Report (Schedule D);
[25] In the event of any slippage in the timetable of more than five working days counsel are to file a joint memorandum identifying the slippage and suggesting such amended timetable as may be appropriate.
[26]In the event of a challenge to admissibility of evidence contained in a brief:
(a)Within 40 working days after receipt of the brief, the challenging party shall notify the challenge to the other party (r 9.11(1) applying).
(b)Within a further 10 working days (if the issue is not resolved), the challenging party must give notice of the admissibility issue to the Court (r 9.11(2) applying).
[27]Rule 9.8 will govern any supplementary briefs.
[28] The common bundle of documents required by r 9.3 shall be prepared by the plaintiff’s solicitors and filed and served by 3.30 pm on 17 July 2026. The common bundle and the parties’ bundles of authorities are to comply with the requirements in Schedule E to this Minute.
[29] I allocate a pre-trial conference (under r 7.8) to be attended by leading counsel for the parties on a date to be allocated by the Registrar, preferably before the Trial Judge, approximately 30 working days before trial. The agenda for that conference shall include the matters set out in r 7.8(2) and the following:
(a) any ADR to be completed; (b) any agreement of facts;
(c) key issues; (d) any special arrangements for
witnesses
(by
AVL/out
of
order/concurrent evidence?); and
(e) any interpretation requirements.
[30] Counsel for the plaintiff shall file and serve a synopsis of opening submissions no later than 3.30 pm on 24 April 2027.
[31]In all other respects rr 9.2 – 9.16 shall apply.
[32] I reserve leave to either party to apply to vary this timetable if the circumstances require that, which will include whether there are delays resulting from the intended appeal by the plaintiff of the 15 May 2025 judgment.
O G Paulsen Associate Judge
Solicitors:
Grant Shand, Auckland Russell McVeagh, Wellington
SCHEDULE A
NHC costs and reasonable disbursements sought on 3B basis
| No. | Step | Allocated days | Daily recovery rate ($) | Scale sum ($) | |
| Security for costs interlocutory application | |||||
| 22 | Filing interlocutory application | 0.6 | 3,530 | 2,118.00 | |
| 24 | Preparation of written submissions | 1.5 | 3,530 | 5,295.00 | |
| 25 | Preparation by applicant of bundle for hearing | 0.6 | 3,530 | 2,118.00 | |
| 26 | Appearance at hearing for principal counsel | 1.0 | 3,530 | 3,530.00 | |
| 26 | Appearance at hearing for second counsel | 0.5 | 3,530 | 1,765.00 | |
| 29 | Sealing order or judgment | 0.2 | 3,530 | 706.00 | |
| 11 | Costs memorandum | 0.4 | 3,530 | 1,412.00 | |
| Scale costs on a 3B basis | $16,944.00 | ||||
| Further discovery interlocutory application | |||||
| 22 | Filing interlocutory application | 0.6 | 3,530 | 2,118.00 | |
| 24 | Preparation of written submissions | 1.5 | 3,530 | 5,295.00 | |
| 25 | Preparation by applicant of bundle for hearing | 0.6 | 3,530 | 2,118 | |
| Scale costs on a 3B basis | 9,531.00 | ||||
| Uplift of 50% | 4,765.50 | ||||
| Total costs for further discovery application | 14,296.50 | ||||
| Disbursements | |||||
| Filing fee | Filing fee for interlocutory application for security for costs | 565.22 | |||
| Filing fee | Filing fee for interlocutory application for further discovery | 565.22 | |||
| Travel | Return airfare costs (two counsel) | 1,341.12 | |||
| Accommodation | Accommodation costs for two nights (two counsel) | 2,030.43 | |||
| Printing | Printing hardcopy bundles for filing with the Court (key documents and key authorities) | 152.25 | |||
| Hearing fee | Hearing fee for hearing on 20 February 2025 | 1,808.70 | |||
| Disbursements total | $6,462.94 |
| TOTAL | $37,703.44 |
SCHEDULE B
NHC costs and reasonable disbursements awarded
| No. | Step | Allocated days | Daily recovery rate ($) | Scale sum ($) | |
| Security for costs interlocutory application | |||||
| 22 | Filing interlocutory application | 0.6 | 2,390 | $1,434.00 | |
| 24 | Preparation of written submissions | 1.5 | 2,390 | 3,585.00 | |
| 25 | Preparation by applicant of bundle for hearing | 0.6 | 2,390 | 1,434.00 | |
| 26 | Appearance at hearing for principal counsel | 1.0 | 2,390 | 2,390.00 | |
| 29 | Sealing order or judgment | 0.2 | 2,390 | 478.00 | |
| Scale costs on a 2B basis | $9,321.00 | ||||
| Further discovery interlocutory application | |||||
| 22 | Filing interlocutory application (2B) | 0.6 | 2,390 | $1,434.00 | |
| 24 | Preparation of written submissions (2A) | 0.5 | 2,390 | 1,195.00 | |
| Scale costs | 2,629.00 | ||||
| Uplift of 25% | $3,286.25 | ||||
| Disbursements | |||||
| Filing fee | Filing fee for interlocutory application for security for costs | 565.22 | |||
| Filing fee | Filing fee for interlocutory application for further discovery | 565.22 | |||
| Airfare | Return airfare costs (one counsel) | $670.56 | |||
| Accommodation | Accommodation costs for two nights (one counsel) | 1,015.22 | |||
| Bundles | Printing hardcopy bundles for filing with the Court (key documents and key authorities) | 152.25 | |||
| Hearing fee | Hearing fee for hearing on 20 February 2025 | 1,808.70 | |||
| Disbursements total | $4,777.17 | ||||
| TOTAL | $17,384.42 | ||||
SCHEDULE C
PROTOCOLS FOR EXPERT CONFERRAL
1Experts are to comply with schedule 4 of the High Court Rules.
2The meeting of the experts shall be privileged. The privilege shall be in the nature of a “without prejudice” privilege, being a joint privilege; its waiver requiring a consent of all parties. No part of the experts’ discussion should be referred to at trial unless all parties agree.
3Prior to the experts conferring with each other:
(a) The parties should discuss, and if possible agree whether an agenda is necessary, and if so attend to agree one that helps the experts to focus on the issues that need to be discussed;
(b) Unless ordered by the Court or agreed by all parties and the experts,
neither the parties nor their legal representatives may attend the experts’ discussions;
(c) If legal representatives attend then they shall not normally intervene except to answer questions put to them by the experts or to provide advice about the law;
(d) The experts should establish mutually efficient arrangements proportional to the case. Discussion may be face to face, but the
practicalities or the proportionality principle may require discussions to be by telephone or video conference;
(e) The expert should provide their curriculum vitae to the parties;
(f) The experts shall provide a description of any testing and a statement of facts and assumptions upon which each expert’s opinion is based;
(g) Those instructing experts shall not instruct experts to avoid reaching agreement.
4Experts are to jointly report:
(a) Setting out a list of issues that have been agreed including in each instance the basis of the agreement;
(b) A list of the issues that have not been agreed including in each instance the basis of disagreement;
(c) A list of any further issues that have arisen that were not included in the original agenda for discussion;
(d) A record of further action if any to be taken or recommended including as appropriately holding further discussions between experts, or the undertaking of further research or further testing.
(e) Agreements between the experts during discussions do not bind the parties unless the parties expressly agree to be bound.
5Experts are to jointly report to the court in the form attached.
SCHEDULE D
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-
BETWEEN [ ]
Plaintiff
AND [ ]
Defendant
REPORT TO THE COURT BY EXPERTS
Dated
Next Event Date:
Judicial Officer:
[plaintiff’s solicitors] [defendant’s solicitors]
May it please the Court:
We [experts] now provide our report to the Court.
1We acknowledge that we have read the Code of Conduct for Expert Witnesses in Schedule 4 of the High Court Rules and agree to comply with it.
2Our respective qualifications as experts are attached.
Issue/s
3In the minute of the High Court dated [state] we were asked to consider the topic/s raised by our reports.
[state]
4We confirm that the evidence and opinion which we give below concerning the topic/s is/are within our areas of expertise.
[note: the Expert must refrain from considering areas outside of his/ her expertise]
Duty to Confer
5We confirm that we have:
(a)conferred with each other to the extent we consider it necessary; and
(b)tried to reach agreement on matters within our respective field of expertise.
6We confirm that in conferring with each other, we have exercised independent and professional judgment, and have not acted on the instructions or directions of any person to withhold or avoid agreement.
Evidence
7We have proceeded on the following facts and assumptions: [state]
Areas of Agreement
8As experts, we agree to the following:
[state]
Areas of Disagreement
9As experts we are unable to agree to the following: [state]
10The reasons for our disagreement are as follows: [state]
Areas for Action
11We have identified the following matters as requiring further action. We recommend:
(a)further discussion between us on [subject];
(b)further research/testing in relation to [identify].
[Dated]
[Signed by Experts]
SCHEDULE E
Bundles for trial
[1]Three sets of bundles will be required for this trial:
(a)a common bundle of documents (r 9.3);
(b)a bundle of relevant pleadings; and
(c)a bundle of authorities.
[2] The common bundle of documents is to comply with the requirements under rr 9.1-9.6 High Court Rules and is to consist only of the “documents to be relied upon” in terms of r 9.2. The form of the bundle is to comply strictly with r 9.4(5), including the requirement that it be indexed and paginated and that the documents be arranged chronologically (or in another sequence or manner approved by the Court).
[3] The bundle of relevant pleadings is also to be chronological, indexed and paginated. It is to comprise the finalised pleadings on which the proceeding is going to trial and only such other key documents (such as interrogatories) as will be referred to at trial.
[4] Any bundle of authorities to be filed by each party is to consist only of the authorities that that party considers essential to its case (and may exclude authorities referred to for straightforward and uncontentious propositions). The bundle of authorities is to be indexed and paginated. The order of authorities should be statutory and regulatory; case law; commentary; and legislative history. The order within each section should follow the order of counsel’s intended submissions.
[5] In relation to all bundles, counsel are to observe the requirement (see r 9.1 High Court Rules) that bundles be commensurate with keeping the cost of the proceeding proportionate to its subject-matter.
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