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…