MB Technology Ltd v Orbis Blockchain Technologies Ltd

[2022] NZHC 1772

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

COMMERCIAL PANEL

CIV-2020-404-1541

[2022] NZHC 1772

BETWEEN

MB TECHNOLOGY LTD

Plaintiff

AND

ORBIS BLOCKCHAIN TECHNOLOGIES LTD

First defendant

DAVID SHU-HAN YU
Second defendant

DANIEL JOHN CROTHERS
Third defendant

Continued overleaf

Hearing:

On the papers

Counsel:

J S Cooper QC, S A Barker and L C Sizer for plaintiff

M Heard and J L Beverwijk for first, fifth and sixth defendants C P Browne and CJL Martin for fourth defendant

Date of judgment:

22 July 2022

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 22 July 2022 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

J S Cooper QC, Auckland Buddle Findlay, Wellington

Lee Salmon Long, Auckland Wilson Harle, Auckland

MB TECHNOLOGY LTD v ORBIS BLOCKCHAIN TECHNOLOGIES LTD - Costs [2022] NZHC 1772 [22
July 2022]

ECOMI TECHNOLOGY PTE LTD

Fourth defendant

DENISE MULLINGS

Fifth defendant

JAHANZAIB KHAN
Sixth defendant

[1]                  My 1 June 2022 judgment — dismissing Ecomi’s and Orbis’ applications to strike out MB Technology’s first cause of action as barred by a settlement agreement, and Orbis’ application for summary judgment on its counterclaims — took the preliminary view Ecomi and Orbis should pay 2B costs to MB Technology on each step in their respective applications.1

[2]MB Technology accordingly seeks 2B costs in the amount of $15,177 and

$86,161.95 disbursements allocated between Ecomi and Orbis, who take issue only with respectively one and two aspects of MB Technology’s claim for costs.

[3]                  For Ecomi, Chris Browne argues MB Technology should not be entitled to recover the full costs of its expert witness, as excessive compared to those incurred by Ecomi (and Orbis) on their expert witness and to be rationalised by reference to both scale and counsel’s work hereunder. While the latter rationalisation once appealed to me (and others),2 that did not survive appellate scrutiny.3

[4]                  Plainly I approved the expert evidence for the purpose of the  proceeding.4 But recoverable disbursements are limited by the extent they are specific and reasonable, and “may be disallowed or reduced if … disproportionate in the circumstances of the proceeding”.5 I am given nothing on which to assess the

1      MB Technology Ltd v Orbis Blockchain Technologies Ltd [2022] NZHC 1257 at [30].

2      Progressive Enterprises Ltd v North Shore City Council (2005) 17 PRNZ 919 (HC) at [27];

Glaister v Amalgamated Dairies Ltd (No 2) (2003) 16 PRNZ 536 at [32].

3      Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 at [130].

4      MB Technology Ltd v Orbis Blockchain Technologies Ltd, above n 1, at [15].

5      High Court Rules 2016, r 14.12(2)–(3).

reasonableness of MB Technology’s expert witness fee, except for its comparison with that of the other expert witness. The comparison says nothing about the reasonableness of either, and any ‘proportionality’ is to be assessed “in the circumstances of the proceeding”, rather than as between experts. And the proceeding includes a claim with at least an initial value of USD 1.075 million, as to which the expert witness’ discounted NZD 85,875 fee does not appear disproportionate.

[5]                  But, as I observed,6 “the expert witnesses’ subsequent analysis” exceeded what was specific to and reasonably necessary for conduct of the proceeding. For that reason, I will reduce MB Technology’s expert witness fee by one-third to $57,540 (incl GST) to reflect its recoverable — specific and reasonable — extent as best I can assess.

[6]                  For Orbis, Josie Beverwijk additionally disputes liability for steps taken by MB Technology in preparing and filing an amended notice of opposition, on the basis such amendment was for MB Technology’s “own purposes”.

[7]                  Costs may be reduced if “the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by  … taking     or pursuing an unnecessary step”.7 While I understand Orbis’ contention the amendment was not responsive to anything newly filed by it, neither can I say the claimed step was unnecessary, or MB Technology contributed unnecessarily to its or the proceeding’s time or expense. Rather, as is not uncommon, a pleading was amended, such being a step in the proceeding. I will not reduce MB Technology’s claimed costs.

[8]                  I therefore order Ecomi and Orbis to pay MB Technology costs in the amount of $15,177 and disbursements of $57,826.95 as otherwise agreed.

—Jagose J

6      MB Technology Ltd v Orbis Blockchain Technologies Ltd, above n 1, at n 9.

7      High Court Rules, r 14.7(f)(ii).