Millstone Grazing Limited v Myoak Holdings Limited

[2017] NZHC 1415

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2016-441-102 [2017] NZHC 1415

UNDER	Part 18 of the High Court Rules
IN THE MATTER OF	an application for specific performance, equitable estoppel or rectification
BETWEEN	MILLSTONE GRAZING LIMITED Plaintiff
AND	MYOAK HOLDINGS LIMITED Defendant

On the papers
Judgment:	23 June 2017

JUDGMENT OF MALLON J (COSTS)

[1]      Millstone issued proceedings against Myoak seeking specific performance of an option to purchase land.  Millstone’s claim was unsuccessful.  Myoak seeks costs on a 2B basis plus disbursements (a filing fee).  On this basis it calculates costs as totalling $28,990 plus a filing fee of $110.  It seeks a further $1,115 for the filing of its  cost  memoranda  on  the  basis  that  Millstone  unreasonably  failed  to  accept Myoak’s costs calculation.

[2]      Millstone’s main objection to Myoak’s claim is that it has been calculated on the basis of the time allocations for an ordinary proceeding.  As this was a claim under Part 18 of the High Court Rules, it considers this was more akin to an originating  application.     I  do  not  agree  with  Millstone  about  this.     Part  18

proceedings are commenced by statement of claim, unless they are eligible to be

MILLSTONE GRAZING LIMITED v MYOAK HOLDINGS LIMITED [2017] NZHC 1415 [23 June 2017]

commenced by originating application under Part 19.1    In this case the proceeding was commenced by statement of claim.   Further, witnesses gave their evidence in accordance with the procedure for an ordinary proceeding: that is, briefs of evidence were read by the witnesses in the witness box and they were cross examined and re- examined.  The fact that the proceeding was conducted efficiently, without discovery and with an agreed statement of facts, is relevant only to the steps for which Myoak can claim costs, not to whether the proceeding should be treated as an originating application.

[3]      Millstone’s second objection is that not all of the steps should be calculated on a Band B basis.  Myoak responds that the parties agreed at a case management conference that category two Band B was appropriate for the proceeding and the Associate Judge made a direction accordingly.  I accept that, despite this direction, it is open to the Court to order costs for any particular step on a different basis where it

has become plain that a different basis is appropriate.2   However, the costs rules are

intended to provide predictability and expediency in the determination of costs.3

Where the category and band have earlier been agreed, a party should not quibble too readily with that category or band subsequently.

[4]      Each  of  the  steps  claimed  by  Myoak  were  steps  it  undertook.    I  have reviewed Millstone’s reasons as to why less than the full Band B time allocation should be allowed for some steps.   I am not satisfied that any of them warrant a reduction in that time allocation.  The main reasons are these.  Although the briefs were limited in number, they were relatively detailed because of the complex background to the option.   Similarly, although there were no lists of issues or authorities, a reasonable amount of time would have been involved in reviewing and finalising the common bundle because of the background.   I consider three days preparation for the hearing is  reasonable.   The time allocations  are intended to provide a reasonable contribution to actual costs.  Counsel for Myoak advises that

actual costs were substantially in excess of the amount claimed.

1      High Court Rules, r 18.4(2).

2      Rule 14.3(2) requiring “special reasons” to change the category, and rule 14.5 which recognises that the appropriate band relates to the particular step.

3      Rule 14.2(g).

[5]      I therefore order that Millstone pay costs to Myoak as calculated by Myoak with one exception.  That is I do not allow the full $1,115 claimed for preparation of the costs memoranda.  The first memorandum adequately set out Myoak’s position on all issues.  I am prepared to allow costs for that memorandum on the basis of a time allocation of 0.1 days.  Millstone is also to pay Myoak’s filing fee of $110.

Mallon J