Matsuoka v Pollak

[2020] NZHC 58

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001935

[2020] NZHC 58

BETWEEN

JOHN TAKASHI MATSUOKA

Applicant

AND

GARRY MICHAEL POLLAK

Respondent

Hearing:

(On the papers)

Counsel:

M W O’Brien for the Applicant

C M Meechan QC for the Respondent

Judgment:

4 February 2020

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 4 February 2020 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

MATSUOKA v POLLAK [2020] NZHC 58 [4 February 2020]

Introduction

[1]    Mr Matsuoka brought a claim for contempt of Court against Mr Pollak by way of originating application. Mr Pollak applied to have the proceedings struck-out. I granted Mr Pollak’s application.1

[2]    Mr Pollak sought indemnity costs. In a costs judgment dated 5 November 2019, I held that Mr Pollak was entitled to the indemnity costs he sought.2 As to the quantum of costs to be awarded, I said:

“[27]… Indemnity costs are not calculated on the basis of the costs rules, but rather on the basis of a reasonable allocation of actual costs having regard to the appropriate time taken, the significance and complexity of the work, and a median hourly rate reasonably applicable. The Court must satisfy itself that the costs incurred were “reasonably incurred”…

[28]  Mr Pollak has provided the Court with various invoices, which total  the claimed actual and reasonable costs... But, as Mr O’Brien rightly points out, the invoices themselves are almost entirely redacted. The Court is therefore unable to assess the reasonableness of the claimed costs.”

(Citations omitted)

[3]    I directed Mr Pollak file a further memorandum, with appropriate attachments, providing the Court with such information as would enable it to assess whether the costs claimed were reasonable. He has now done so.

[4]    I have reviewed the information provided and concluded that Mr Pollak’s actual costs and disbursements, amounting to $63,624.77, were reasonably incurred. The strike-out application was part of a much larger and varied series of disparate proceedings initiated by Mr Matsuoka. In the circumstances, Mr Pollak’s retention of senior counsel was not unreasonable. Nor was the rate charged by that senior counsel out of the ordinary.

Discussion

[5]    Mr Matsuoka filed a memorandum raising a number of issues with the reasonableness of the costs incurred by Mr Pollak. I will deal with them briefly.

1      Matsuoka v Pollak [2018] NZHC 3292, [2019] NZAR 246.

2      Matsuoka v Pollak [2019] NZHC 2875.

[6]    First, Mr Matsuoka complains that Mr Pollak seeks costs on costs. He says this should  not  be  allowed.  I disagree.  Costs  on  costs  are  not  so unusual  as  Mr Matsuoka suggests.3 And as I noted in the costs judgment, Mr Pollak was completely entitled to reject Mr Matsuoka’s offer to pay scale costs, causing him to incur further expense on various costs memoranda.4 I see no reason why he should have to shoulder the burden of this additional expense.

[7]    Second, Mr Matsuoka points out that the costs claimed by Mr Pollak are inclusive of GST. That is because Mr Pollak  says  he is  not  GST-registered.  But Mr Matsuoka says the onus is on Mr Pollak to prove this. He cites the Court of Appeal’s decision in New Zealand Venue and Event Management Ltd v Worldwide NZ LLC in support.5 There the Court said:

“[16] As when awarding increased costs, the Court will proceed on the basis that the successful party is GST–registered and entitled to a GST input credit. Accordingly, a party that is not able to recover GST should inform the Court so that this may be taken into account. This basis ensures double recovery is avoided and puts the onus on the successful party to inform the Court of its inability to recover GST if it wants fully to recover its costs.”

[8]    I do not read those comments of the Court of Appeal as imposing a requirement on Mr Pollak to provide the Court with hard evidence that he is not GST-registered. The Court of Appeal simply says that a party should “inform” the Court that they are not able to recover GST. Mr Pollak has done so. I am satisfied that requiring any more of him would be unreasonable in the circumstances and anathema to the swift determination of costs in this matter.

[9]    Thirdly, Mr Matsuoka attempts to relitigate a matter already determined in the costs judgment: that is, the apparent payment of Mr Pollak’s legal expenses by his insurer. I say no more about that matter, having already directed Mr Matsuoka not to address matters of liability in his memorandum to the Court. In any case, whatever private arrangements Mr Pollak has in respect of his legal costs is beyond my purview.

3      See for example Griffin Trust AG v Global Oil Services Ltd [2019] NZHC 3418 at [35].

4 At [25].

5      New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016) 23 PRNZ 260.

Result

[10]I order Mr Matsuoka to pay Mr Pollak the following amounts:

(a)$62,989.78 in costs; and

(b)$634.99 in disbursements.

Moore J

Solicitors:

Mr O’Brien, Auckland
Ms Meechan QC, Auckland