O'Kane c O'Kane

[2023] NZHC 2699

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-740

[2023] NZHC 2699

UNDER

the Companies Act 1993, section 165

BETWEEN

SEAN MARTIN O’KANE

Plaintiff

AND

SUSAN ANNE O’KANE

First Defendant

LEMON TREE DESIGN LIMITED
Second Defendant

TUTA LIMITED

Third Defendant

On the papers:

27 September 2023

Appearances:

Luke T Meys for the Plaintiff

Simon R Mitchell KC for the First Defendant

Judgment:

28 September 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Costs

This judgment was delivered by me on 28 September 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Neilsons Lawyers (L T Meys), Onehunga, Auckland, for the Plaintiff

Broadway Law (Jack Rafiei), Newmarket, Auckland, for the First Defendant

Counsel:
Simon Mitchell KC, Hobson Chambers, Auckland, for the First Defendant

SEAN MARTIN O’KANE v SUSAN ANNE O’KANE [2023] NZHC 2699 [28 September 2023]

Introduction

[1]        The plaintiff withdrew his application for interim relief on 19 May 2023. The matter was set down for a hearing on 24 May 2023.

[2]        Moore J issued a minute dated 22 May 2023 ordering the withdrawal of the plaintiff‘s application and vacating the fixture. The defendant now seeks costs in respect of the plaintiff’s application for interim orders.

[3]        Counsel for the first defendant has filed a memorandum dated 16 June 2023, and counsel for the plaintiff filed a memorandum dated the same date.

[4]The Court apologises as these memoranda have only just been referred to me.

Costs sought by the first defendant

[5]        Mr Mitchell KC, for the first defendant, submits that r 15.23 of the High Court Rules 2016 (the Rules) creates a presumption that a plaintiff who discontinues a proceeding will pay costs to the defendant. Mr Mitchell submits that the presumption in r 15.23 obviates the requirement for the defendant to demonstrate the plaintiff acted unreasonably in commencing and then discontinuing the proceeding.1

[6]        Mr Mitchell submits that the category for costs in this proceeding is category 2 and therefore a daily rate of $2,390.00 should apply. He also points to r 14.8 which provides that costs on an opposed interlocutory application, unless there are special reasons to the contrary, must be fixed in accordance with these rules when the application is determined.

[7]        Mr Mitchell is seeking 2B costs, accepting that steps 22-25 of Schedule 3 are applicable:

1      Opus International Consultants Ltd v Colac Bay Vision Ltd & Anor [2015] NZHC 1782 at [21].

1.0 days – commencement of the statement of defence

0.4 days – preparation for first case management conference;

0.4 days – filing memorandum for first case management conference;

0.6 days – opposition to interlocutory application;

1.5 days – preparation of written submissions.

[8]        Mr Mitchell then totals the allocation to 3.9 days at $2,390.00 per day, being a total of $9,321.00.

[9]        Finally, Mr Mitchell submits that as the award of cost is discretionary, the Court should recognise the significant costs incurred by the defendant in relation to this matter and attendances went beyond the standard interlocutory application given:

(a)the importance to the first defendant;

(b)the complex nature of the proceedings;

(c)the preparation that had commenced to the extent of affidavit evidence filed.

The plaintiff’s submissions

[10]      Mr Meys, for the plaintiff, submits that the first defendant is not entitled to the cost sought of $9,321.00. Mr Meys submits that the application was scheduled for a hearing on 24 May 2023 but was withdrawn on 19 May 2023. At that time the first defendant had only completed step 23 under the High Court Rules, namely filing of opposition to the interlocutory application. He submits that the preparation of the affidavit, which is required to be filed with a notice of opposition in relation to any interlocutory application is already included in step 23 of Schedule 3.2

[11]      Mr Meys also submits the written submissions for the hearing should not be claimed as the application was withdrawn five days prior to the hearing.

2      New Conservative v Television New Zealand Ltd [2020] NZHC 3096.

[12]      Mr Meys also rejects the claim for preparation of the defence as no statement of defence was filed, and rejects the claim for the first case management conference as he submits no case management conference was held.

Result

[13]I am of the view that costs should be awarded to the first defendant of

$5,019.00 as follows:

(a)Filing fee opposition         – 0.6 days            $1,334.00

(b)Preparation of submissions – 1.5 days            $3,585.00

$5,019.00

[14]      The commencement of the statement of defence, which was not filed, should not be claimed in respect of the interlocutory hearing.

[15]      In accordance with the New Conservative decision the preparation of the affidavit in support of the notice of opposition is included in step 23 of Schedule 3.

[16]      I can see no evidence on the file that a case management conference was held, so the costs claim for that is disallowed.

[17]      Given the application was withdrawn on 19 May 2023 and the hearing was scheduled for 24 May 2023, it is reasonable that the first defendant’s submissions were prepared by the time the application was withdrawn. Accordingly, the claim for preparation of the submissions is allowed.

Orders

[18]I order that the plaintiff is to pay the first defendant costs of $5,019.00.

…………………………….. Associate Judge Taylor