McKay v Aisleworx Group Limited

[2025] NZHC 1938

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1015

[2025] NZHC 1938

BETWEEN

ANDREW JOHN MCKAY and

REES GRAHAM LOGAN as liquidators of Aisleworx Limited (in Liquidation)

First plaintiffs

AND

AISLEWORX LIMITED (in Liquidation) Second plaintiff

AND

PGL ADMIN LIMITED

Third plaintiff

AND

AISLEWORX GROUP LIMITED

First defendant

AND

DOUGLAS JAMES BARTLETT

Second defendant

Hearing:	On the papers
Appearances:	M J Tingey and T L Utama for plaintiffs Second defendant in person
Date of judgment:	15 July 2025

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 15 July 2025 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

M J Tingey, Barrister, Auckland Fee Langstone, Auckland

Copy to:
Defendants

MCKAY v AISLEWORX GROUP LTD – Costs [2025] NZHC 1938 [15 July 2025]

[1]                 My decision of 17 April 20251—finding against Mr Bartlett on the plaintiffs’ 10th and 11th causes of action in their amended claim after my 22 December 2023 judgment dismissed their prior causes in their original claim,2 to order “Mr Bartlett contribute the sum of $361,188 to Limited’s assets by way of compensation, together with interest calculated from 20 September 2015”3—took a preliminary view:4

… the plaintiffs ultimately having succeeded on the basis of the evidence at trial—in this proceeding of average complexity requiring counsel of skill and experience considered average in the High Court, in which a normal amount of time is considered reasonable for each step—Mr Bartlett should pay the plaintiffs a single sum of 2B costs. In my preliminary view, again, the overall history of this proceeding militates against any increase or reduction in costs on account of any party’s unnecessary contribution to the time or expense of the proceeding

and otherwise reserved costs for determination on memoranda to be filed.5

[2]                 The plaintiffs seek costs of $103,267 (and disbursements of $17,266) on that basis. They also quantify the sum of interest to 7 May 2025, as calculated in accordance with Interest on Money Claims Act 2016, in the amount of $139,148.04.

[3]                 Mr Bartlett responds the amended claim “should be treated as a new cause of action with separate costs, and … those costs should only be allocated as from the time of the December 2023 Judgment”, because he contends the defendants would have responded “differently” had the 10th and 11th causes of action been raised at the original trial, by providing “uncontestable proof that payment for assets had been made in full”. He argues the plaintiffs “cannot be said ultimately successful”, in obtaining only some $360,000 in damages on two additional causes of action against the nearly $6 million sought on the original nine causes, and points out that appears also to be the plaintiffs’ view, given their comprehensive appeal. He proposes costs should lie where they fell. Last, for lack of knowledge of their workings, he disputes the plaintiffs’ interest calculation.

1      McKay v Aisleworx Group Ltd [2025] NZHC 947 (the 2025 judgment).

2      McKay v Aisleworx Group Ltd [2023] NZHC 3877 (the 2023 judgment).

3      The 2025 judgment, above n 1, at [17(b)].

4 At [19].

5 At [20].

[4]                 My judgments were clear the amended claim was “to be brought on the basis of the evidence at trial”.6 Given Mr Bartlett’s “failures both to maintain formal financial statements for Limited, and to provide adequate contemporaneous discovery from which Limited’s accounting records could be reconstructed”,7 his suggestion of a ‘different’ approach at trial rings hollow. Rather it too “smacks of hindsight rationalisation”.8 I accounted for the parties’ relative positions in taking a preliminary view “against any increase or reduction in costs on account of any party’s unnecessary contribution to the time or expense of the proceeding”.9 I am not asked to revisit that view. Regardless of the extent of the plaintiffs’ success, Mr Bartlett quite clearly was unsuccessful and in principle therefore to pay costs.

[5]                 I confirm my preliminary views. There is no contest to the sum of disbursements, which—other than court fees and service costs—relate to the provision of a platform for hosting discovery I approve as specific to and reasonably necessary for the conduct of the proceeding and reasonable in amount.10 I will order accordingly.

[6]                 So far as the plaintiffs’ interest claim is concerned, I already have determined it as payable.11 Their calculation to 7 May 2025 is consistent with that applying the calculator established under s 13 of the 2016 Act. No further order is required.

[7]                 I order Mr Bartlett pay the plaintiffs costs of $103,267 plus $17,726 on account of disbursements.

—Jagose J

6      The 2023 judgment, above n 2, at [132]; McKay v Aisleworx Group Ltd [2024] NZHC 2360 at [9]; and the 2025 judgment, above n 1, at [7] and [9].

7      The 2025 judgment, above n 1, at [12].

8      The 2023 judgment, above n 2, at [118].

9      The 2025 judgment, above n 1, at [19].

10     High Court Rules 2016, r 14.12(2).

11     The 2025 judgment, above n 1, at [17(b)].