Optimizer HQ Limited v Bank of New Zealand

[2020] NZHC 1570

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001763

[2020] NZHC 1570

BETWEEN

OPTIMIZER HQ LIMITED

Plaintiff

AND

BANK OF NEW ZEALAND

First Defendant

SMARTPAY LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

B O’Callahan for Plaintiff

J A Craig and S A Comber for First Defendant
D J Chisholm QC and J D Ryan for Second Defendant

Judgment:

3 July 2020

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 3 July 2020 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

K3 Legal Ltd/B O’Callahan, Auckland Simpson Grierson, Auckland

Claymore Partners Ltd/D J Chisholm QC, Auckland

OPTIMIZER HQ LTD v BANK OF NEW ZEALAND [2020] NZHC 1570 [3 July 2020]

[1]                 I refer to my judgment of 12 June 2020.1 I struck out the plaintiff, Optimizer HQ Ltd’s (OHQL’s), seven causes of action and directed the Registrar to return to it an amended statement of claim filed on 3 June 2020. I also held that the first defendant, the Bank of New Zealand (BNZ), and the second defendant, Smartpay Ltd (Smartpay), were entitled to their reasonable costs and disbursements. I expressed the preliminary view that costs should be fixed on a 2B basis, but invited counsel to file memoranda if they disagreed with view or were unable to reach agreement.

[2]I have now received memoranda from the parties.

[3]                 The BNZ and Smartpay both suggest that it would be appropriate for OHQL to pay increased costs; however, both take the stance that, in order to resolve the costs issue expeditiously, they will limit their cost claims to 2B scale costs and disbursements. Both have annexed to their respective memoranda schedules detailing the costs sought. The BNZ seeks costs in the sum of $10,994, together with disbursements of $1,130.43 – a total of $12,124.43. Smartpay seeks costs of $16,252, together with disbursements of $1,519.64 – a total of $17,771.64.

[4]                 OHQL does not take issue with costs being fixed on a category 2 basis. It does however say that claims for some steps should not be allowed, or should be reduced. First, it notes that both BNZ and Smartpay have sought costs for second counsel. It argues that the hearing could easily have been conducted without the assistance of second counsel, and that there should be no allowance for second counsel. Secondly, it notes that both defendants are claiming for producing the bundle of documents, when only one bundle was produced. It submits either that this step should be allowed only to Smartpay who prepared the bundle, or that the allowance should be a single allowance shared between both defendants. Thirdly, it notes that its claims were struck out, and that Smartpay’s application for summary judgment did not succeed. It says that Smartpay did not have to file a statement of defence, and that it chose to do so to support its application for summary judgment. It argues that the allowance claimed for filing the statement of defence should not be allowed.

1      Optimizer HQ Ltd v Bank of New Zealand [2020] NZHC 1253.

[5]                 Smartpay has responded by filing a brief memorandum in reply. It argues that certification for second counsel is appropriate. It accepts that the common bundle was prepared by it, and asserts that it is therefore entitled to an allowance for its preparation. It also argues that an application for strike out under r 15.1, and/or a defendant’s application for summary judgment under part 12 of the rules does not avoid the obligation on a defendant to file a statement of defence, and that it filed the same as required. It argues that it is entitled to an allowance for doing so.

[6]                 The parties accept, and I remain of the view, that costs on a 2B basis are appropriate. I accept OHQL’s argument that second counsel was unnecessary. The matter was relatively straightforward. The bundle of documents was not horrendous, and in my view, only one counsel was required. I decline to certify for second counsel or to allow costs for second counsel. Further, it appears that the bundle was prepared by Smartpay. I agree with OHQL that in those circumstances the BNZ cannot also claim for preparing the bundle. However, I disagree with OHQL’s assertion that Smartpay did not need to file a statement of defence. The rules are clear. It was required to do so – r 12.4(3) and (4). Accordingly, Smartpay is entitled to recover its costs on a 2B basis for taking that step.

[7]It follows that I make costs awards against OHQL as follows:

(a)in favour of the BNZ in the sum of $8,365, together with disbursements of $1,130.43 – a total of $9,495.43;

(b)in favour of Smartpay in the sum of $15,057, and disbursements of

$1,519.64 – a total of $16,576.64.

Wylie J