MEDIAFLOW LIMITED AND LUCAS MARIN - [2024] NZHC 2835

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-80

[2024] NZHC 2835

UNDER Section 164 of the Companies Act 1993

BETWEEN

MEDIAFLOW LIMITED

Applicant

AND

LUCAS MARIN

Respondent

Hearing: On the papers

Appearances:

B B Gresson and B Russell for Applicant D L Marriott for Respondent

Judgment:

1 October 2024

JUDGMENT OF MCHERRON J

(Costs)

Introduction

[1] On 22 August 2024, I issued my judgment dismissing the application by Mediaflow Ltd (Mediaflow) for summary judgment but granting Mediaflow an interim injunction against the respondent Mr Lucas Marin.1

[2]In my judgment, I expressed the preliminary view that:

(a)there was no justification to depart from the usual practice, where an application for summary judgment is dismissed, of reserving costs pending trial;2

1 Mediaflow Ltd v Marin [2024] NZHC 2269 [Reasons judgment].
2 At [146], citing NZI Bank Ltd v Philpott [1990] 2 NZLR 403.

MEDIAFLOW LIMITED v MARIN [2024] NZHC 2835 [1 October 2024]

(b)Mediaflow is entitled to costs assessed on a 2B basis in respect of the interim injunction application.

[3] Despite my encouragement, the parties have been unable to resolve matters of costs among themselves. In this judgment, I determine two costs applications:

(a)by Mediaflow for costs on a 2B basis in respect of the interim injunction application; and

(b)by Mr Marin to fix costs in respect of the summary judgment application, and to order that costs on the interim injunction application are to lie where they fall.

Mediaflow’s memorandum

[4] Mediaflow filed a memorandum seeking costs dated 5 September 2024. Attached to the memorandum was correspondence indicating that Mediaflow attempted to resolve costs in line with the preliminary views in my judgment. As Mr Marin did not agree to pay the costs of the interim injunction on a 2B basis, Mediaflow sought an order for costs and disbursements.

Mr Marin’s memorandum

Summary judgment

[5] Mr Marin’s memorandum on costs was also dated 5 September 2024. He referred to a without prejudice save as to costs offer made under r 14.10 of the High Court Rules 2016 (often described as a Calderbank offer) on 6 December 2023 informing Mediaflow of his arguable defence to Mediaflow’s summary judgment application, meaning that application would “inevitably fail”. Mr Marin says his offer justifies departure from the usual practice of reserving costs in a summary judgment context.

[6] Mr Marriott, on behalf of Mr Marin, submits that it is therefore appropriate to fix costs on the summary judgment application according to scale, along with a “sizeable uplift”.

Interim injunction

[7] Mr Marriott submits that Mr Marin’s 6 December 2023 offer is also relevant to the costs of the interim injunction application. Further, given both applications were heard together, and Mr Marin successfully opposed the summary judgment application, the following factors are relevant to the assessment of what proportion of costs ought to be attributed to the interim injunction application:

(a)Mediaflow prepared separate notices of application but all affidavits (other than short supplementary affidavits filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2835
Decision Date: 1 October 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Mediaflow Limited, as the applicant, filed a case against Lucas Marin, the respondent, under Section 164 of the Companies Act 1993. The case revolves around an application for summary judgment by Mediaflow, which was dismissed, and an interim injunction that was granted against Marin. The legal issues before the court involved determining the appropriate costs for both the summary judgment application and the interim injunction application.

The court began by noting that costs are generally awarded to the successful party, and it frequently reserves costs on summary judgment applications until the final determination of the proceeding. The court emphasised that unsuccessful applications for summary judgment do not necessarily justify an immediate costs order. Regarding the interim injunction, the court found Mediaflow to be successful overall and thus entitled to costs on a 2B basis. However, the court decided to discount the costs by 15%, resulting in a total award of $9,540.18.

The court concluded that despite the unsuccessful summary judgment application, Mediaflow was entitled to costs for the interim injunction, albeit with a reduction to account for various factors, including the entanglement of the injunction application with the summary judgment process. The court reserved the costs of the summary judgment application pending the conclusion of the substantive proceeding, encouraging the parties to attempt to agree on costs if they do not pursue the litigation further.

Orders