Oraka Technologies Limited (in liquidation) v Geostel Vision Limited

[2023] NZHC 1738

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2005-419-000809

[2023] NZHC 1738

BETWEEN

ORAKA TECHNOLOGIES LIMITED (IN LIQUIDATION)
First Plaintiff

ORAKA GRADERS LIMITED
Second Plaintiff

MICHAEL WILLIAM SCHWARZ
Third Plaintiff

AND

GEOSTEL VISION LIMITED

First Defendant

PAUL DAYNES and THE ESTATE OF GORDON ROBERTSON

Second Defendants

NAPIER TOOL & DIE LIMITED

Third Defendant

Hearing:	On the papers
Counsel:	J A MacGillivray for Second and Third Plaintiffs K T Glover for First and Second Defendants
Judgment:	5 July 2023

JUDGMENT OF HINTON J

(Re: Costs on costs judgment)

This judgment was delivered by me on 5 July 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:

Tompkins Wake, Hamilton

Malloy Goodwin Harford, Auckland

ORAKA TECHNOLOGIES LIMITED (IN LIQUIDATION) v GEOSTEL VISION LIMITED [2023] NZHC 1738 [5 July 2023]

[1]    This is a very long-running copyright proceeding. A significant number of judgments have been delivered.

[2]    The last of the judgments from this Court was on 5 October 2021 when I ordered that costs in relation to the 2017 trial of the matter should lie where they fall.1

[3]    Geostel appealed that decision and the appeal was dismissed by the Court of Appeal on 13 July 2022.2

[4]    The second and third plaintiffs seek costs on my decision dated 5 October 2021, that is, they seek costs on the costs judgment. The total amount sought is

$6,333.50, which is reached by adding a 50 per cent uplift to scale.

[5]I am not prepared to make an order for costs for the reasons set out below.

[6]    I accept, contrary to the defendants’ argument, that I am not functus officio in relation to costs. The fact that a Judge is silent as to costs in their judgment and that the parties are silent as to costs does not mean the issue cannot be raised subsequently, and quite frequently it is.

[7]    The defendants, however, appear to be correct that the only party who has a claim for costs is the first plaintiff being the only plaintiff to succeed in obtaining a damages award. The first plaintiff was placed in liquidation on 4 April 2022 and the costs application has been made by solicitors acting for the second and third plaintiffs only.

[8]    Further, I do not consider costs on costs to be appropriate in this instance. While it is within the Court’s power to award costs on costs, such awards remain discretionary and are rare.3 My costs judgment dated 5 October 2021 was a reasonably finely balanced one, not one of a clear-cut nature. Neither party won outright. While Oraka was the successful party, as my judgment stated that success was limited.4 This

1      Oraka Technologies Ltd v Geostel Vision Ltd [2021] NZHC 2635.

2      Geostel Vision Ltd v Oraka Technologies Ltd [2022] NZCA 312.

3      Legler v Formannoij [2022] NZHC 1804.

4      Oraka Technologies Ltd v Geostel Vision Ltd, above n 1 at [11].

was confirmed on appeal by the Court of Appeal.5 Further, the position regarding Calderbank offers to which the second and third plaintiffs refer on the present application is far from clear-cut.

[9]    Finally, even had I considered costs appropriate, I do not consider there was a basis for an uplift on scale, such that the matter is even more de minimis than the submitted claim.

[10]   I therefore dismiss the second and third plaintiffs’ application for costs on costs. I similarly dismiss the first and second defendants’ application for costs on their memorandum dated 29 September 2022. They can consider themselves fortunate that they are not having to pay costs as sought by the second and third plaintiffs. Viewed in the round, it is clearly appropriate that no further order be made.

Hinton J

5      Geostel Vision Ltd v Oraka Technologies Ltd, above n 2 at [32].