Newton v Akers

[2024] NZHC 621

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000570

[2024] NZHC 621

BETWEEN

JOHN DEXTER NEWTON

First Applicant

AND

ANNIE AND ARNIE LIMITED

Second Applicant

AND

LOGAN AKERS

First Respondent

AND

TAR TRADING LIMITED

Second Respondent

Hearing:	(On the papers)
Counsel:	D J Patterson for Applicants C T C Bell for Respondents
Judgment:	21 March 2024

JUDGMENT OF LA HOOD J

(Costs)

[1]    By judgment dated 20 February 2024, I granted (in part) Mr Newton’s application to adduce further evidence on appeal.1 I directed that the parties file memoranda if they could not agree on costs. They have been unable to reach agreement and I am accordingly required to determine costs.

1      Newton v Akers [2024] NZHC 229. As with the substantive decision, I will refer to the parties as Mr Newton and Mr Akers as the other parties are their alter ego companies.

NEWTON v AKERS [2024] NZHC 621 [21 March 2024]

Parties’ positions

Mr Akers

[2]    Mr Akers submits that he was the successful party save for the minor matter of “pre-trial” renovation  costs,  which  is  dwarfed  in  comparison  to  the  evidence Mr Newton failed to have admitted.

[3]    Mr Akers further submits that Mr Newton’s success was also limited by the finding that admission of the evidence increases the likelihood that a rehearing in the District Court will be required to resolve the issue.2 He also points out that the evidence that was admitted was filed late and some of the evidence was still not produced at the time of hearing, leaving Mr Akers with little or no time to consider the evidence or consider his position in light of that evidence. This approach was time consuming, stressful to Mr Akers and procedurally unfair.

[4]    On that basis, Mr Akers submits that he should be entitled to scale costs on a 2B basis reduced by 10 per cent to reflect Mr Newton’s success. This is calculated as

$6,811.50 reduced by 10 per cent to $6,130.35.

Mr Newton

[5]    Mr Newton submits that costs should lie where they fall, or in the alternative, that an award of costs to each party at 50 per cent would set off any amounts owed by either party. This is said to be appropriate on the basis that there were five issues determined and Mr Newton succeeded on two of them, namely pre-trial renovation costs as well as obtaining Mr Akers’ consent to payment of post-trial renovation costs (a matter I was not required to decide as it had been agreed on at the point I heard the application).3

2      At [33]–[36].

3      At [21]–[23].

Decision

[6]    Costs are at the discretion of the Court, which must be exercised in accordance with the settled principles and provisions of pt 14 of the High Court Rules 2016.4 I adopt the principled and pragmatic approach to costs articulated by Cooke J in Lepionka & Company Investments Ltd v Gibson Sheat.5

[7]    I do not accept the premise of Mr Newton’s submissions that the parties have had an essentially equivalent measure of success. I consider, overall, Mr Akers has had a substantially greater measure of success in opposing the admission of evidence relating to holding costs and the extenuating circumstances in respect of Mr Newton’s mental health. I also accept Mr Akers’ submissions that Mr Newton’s approach to the application by filing the proposed evidence late, or not at all, was unhelpful. Therefore, the starting point should be that Mr Akers is entitled to costs on a 2B basis.

[8]    However, I accept that Mr Newton has had a reasonable measure of success by having admitted evidence relating to a claim for costs of approximately $90,000. I consider this level of success to be substantially greater than the 10 per cent suggested by Mr Akers.

[9]    I consider the appropriate approach is to order 2B costs to Mr Akers reduced by 40 per cent to reflect Mr Newton’s success in respect of renovation costs, namely

$6,811.50 reduced by 40 per cent, being $4,086.90.

La Hood J

Solicitors:

Patterson Legal, Wellington for Applicants Cullinane Steele, Levin for Respondents

4      High Court Rules 2016, r 14.1.

5      Lepionka & Company Investments Ltd v Gibson Sheat [2023] NZHC 2745.