PMT 2010 Limited (In liq) v Mark

[2023] NZHC 3320

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2018-406-010

[2023] NZHC 3320

BETWEEN

IAIN ANDREW NELLIES as liquidator of PMT 2010 Ltd (in liq)
Plaintiff

AND

PETER MARK and

JEANETTE PATRICIA MARK

Defendants

CIV-2021-406-013

BETWEEN

PMT 2010 LIMITED (In liq)
First Plaintiff

IAIN ANDREW NELLIES as liquidator of PMT 2010 Ltd (in liq)

Second Plaintiff

AND

PETER MARK and

JEANETTE PATRICIA MARK
First Defendants

WISHEART MACNAB & PARTNERS TRUSTEE COMPANY LIMITED and

DAVID JOHN PAUL as trustees of the Mark Family Trust

Second Defendants

Hearing:	On the papers
Appearances:	D P MacKenzie for Plaintiffs in both proceedings P Morten for Defendants in CIV-2018-406-010 and First Defendants in CIV-2021-406-013
Judgment:	22 November 2023

NELLIES v MARK [2023] NZHC 3320 [22 November 2023]

JUDGMENT OF ASSOCIATE JUDGE SKELTON [COSTS]

[1]                 On 22 August 2023, the first defendants applied for a further order for particular discovery and an “unless order” against the first and second plaintiffs, on the grounds that the first and second plaintiffs had failed to comply with their obligations under a discovery order made on 23 March 2023.

[2]                 At the case management conference on 17 October 2023, after hearing from counsel for the parties, I made a further order for particular discovery in terms of paragraph 3 of the first defendants’ application dated 22 August 2023. I also ordered that the parties were to endeavour to agree costs on the application. Unfortunately, costs have not been agreed and the parties have filed memoranda.

[3]                 The first defendants say that they were successful and seek costs on a 2B basis in the total sum of $4,541 and a filing fee disbursement of $500, making a total of

$5,041.

[4]                 The first and second plaintiffs oppose costs on the basis that the first defendants were not required to make the interlocutory application, and the first and second plaintiffs did not oppose the application and informally discovered documents sought by the first defendants in advance of the conference on 17 October 2023.

Legal principles

[5]                 The principles governing the award of costs are well established.1 Questions of costs are ultimately a matter of discretion, the overall objective being to achieve an outcome that best meets the interest of justice. However, the discretion is not unfettered; it is qualified by the applicable rules, rr 14.2–14.10 of the High Court Rules 2016, and must be consistent with established principles.

1      High Court Rules 2016, r 14.1; Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28]; and Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

[6]                 The general principles in relation to determination of costs include that the party who fails should pay costs to the party who succeeds (costs follow the event), and costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.2

Discussion

[7]                 The first and second plaintiffs contend that the current situation is similar to their previous claim for costs on their application for leave to file an amended statement of claim. The first and second plaintiffs say that the first defendants argued that they had not opposed the application and therefore no costs order should be made, and the same argument should apply here. However, the first and second plaintiffs’ previous application for costs was bound up with r 7.77(8) so it is not same as the current situation. Further, costs were awarded to the first and second plaintiffs for the filing of the application for leave because the first defendants had required that application to be made.3

[8]                 The first and second plaintiffs contend that they did not require the first defendants to make the application for further discovery. They say that the application was made without warning, and the first and second plaintiffs did everything they could to understand what the first defendants were actually requesting of them, and to comply with those requests, and put forward proposals for disclosure of the hard copy time records sought. Copies of correspondence between the parties are attached to the first and second plaintiffs’ memorandum on costs.

[9]                 However, counsel for the first defendants submits that the Court has not been provided with a complete set of the correspondence exchanged between the parties before the first defendants were forced to apply for further discovery. Further, counsel for the first defendants says that disclosure of the hard copy time records was required by way of sworn affidavit and refers to a proposed confidentiality agreement put forward by the first and second plaintiffs, as a condition of providing unredacted

2      High Court Rules, r 14.2(1).

3      Nellies v Mark [2023] NZHC 1526.

copies of the records, which he submits was not necessary due to r 8.30(4) of the High Court Rules and was not accepted by the first defendants.

[10]              The first and second plaintiffs submit that the first defendants’ further discovery application was resolved prior to the conference on 17 October 2023, but the first defendants failed to confirm this. They say that the conference on 17 October 2023 was largely maintained to deal with other issues between the parties as is evident from the memoranda filed for the conference.

[11]              It is apparent that, in response to the first defendants’ interlocutory application, the first and second plaintiffs initially provided informal discovery of the hard copy time records, and subsequently, after the order was made on 17 October 2023, filed a further affidavit listing the documents informally discovered. In the circumstances, I consider that the first defendants are entitled to costs in respect of their interlocutory application for further discovery on a 2B basis, but I do not consider that the first defendants are entitled to the full costs claimed. That is because the application was not formally opposed by the first and second plaintiffs, the first defendants were not successful in obtaining the “unless order” which was pursued up to 17 October 2023, and preparation for the 17 October conference and the conference itself covered other issues between the parties in addition to the first defendants’ discovery application.

[12]              Taking a broad approach, I allow the first defendants 50 per cent of the 2B costs claimed together with the filing fee for their interlocutory application.

Result

[13]              The defendants are entitled to costs in the sum of $2,270.50 and disbursements in the sum of $500.

Associate Judge Skelton

Solicitors:

Clark Boyce Lawyers, Christchurch for Plaintiffs in both proceedings

Wisheart Macnab & Partners, Blenheim for Defendants in CIV-2018-406-010 and First Defendants in CIV-2021-406-013