Pokena Village Holdings Limited v Pokeno Nine Limited

[2019] NZHC 2613

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-649

[2019] NZHC 2613

BETWEEN

POKENO VILLAGE HOLDINGS LIMITED
Plaintiff

JOHN PATRICK NOBLE and PATRICIA MARY NOBLE
Second Plaintiffs

AND

POKENO NINE LIMITED

First Defendant

POKENO ELEVEN LIMITED
Second Defendant

PEL HOLDINGS LIMITED

Third Defendant

Hearing:

On the papers

Counsel

C R Andrews and K T O’Halloran for the Plaintiffs S J Tee for the First and Second Defendants

B Stewart for the Third Defendant

Judgment:

15 October 2019

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 15 October 2019 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr C R Andrews and Mr K T O’Halloran, McVeagh Fleming, Auckland Mr S J Tee, Morton Tee Limited, Takapuna

Mr B M Stewart, Simpson Western, Auckland

POKENO VILLAGE HOLDINGS LTD v POKENO NINE LTD [2019] NZHC 2613 [15 October 2019]

[1]                 The defendants seek costs following my judgment of 18 September 2019 dismissing the proceeding in favour of arbitration.1

[2]                 I indicated that the defendants are entitled to costs subject to considering whether r 14.7 applies. That was because there was a suggestion in the plaintiffs’ application to set aside the defendants’ protests that the plaintiffs incurred wasted costs in the proceeding as a result of the timing of the defendants’ protests.

[3]                 I indicated that if costs could not be agreed I would receive brief memoranda within 14 days. The parties were unable to engage substantively within the 14 days. Rather than seek a short extension, they have filed memoranda. In the circumstances, it is appropriate to deal with costs on the papers.

[4]                 The defendants essentially seek scale costs on a 2B basis. However, the defendants also seek costs in respect of their costs memoranda.

[5]                 The plaintiffs submit that scale costs should be on a 2A basis. They also seek a reduction under r 14.7, at least in respect of the defendants’ claim for costs for initial memoranda. Disbursements for courier and travel are also disputed.

[6]The extent of the difference is less than $6,000.

[7]                 The time and other pressures on Judges leave room for robust judgment as to the costs considered reasonable in all the circumstances.2

[8]                 I consider the defendants are entitled to scale costs on a 2B basis. It is unnecessary in the circumstances of this case to categorise any individual steps as Band A.

[9]                 While I signalled that wasted costs as a result of the timing of the defendants’ protests may be considered under r 14.7, I am not persuaded that a reduction should be made. I do not consider that any of the grounds in r 14.7(f) are made out.

1      Pokeno Village Holdings Ltd v Pokeno Nine Ltd [2019] NZHC 2358.

2      Frater Williams & Co Ltd v Australian Guarantee Corp (NZ) Ltd (1994) 2 NZ ConvC 191,873 (CA) at 191,887.

[10]              I disallow the defendants’ claim for costs in respect of their costs memoranda. Costs on costs are unusual and the Court is reluctant to award them.3 Here, the memoranda may have been avoided if the parties had engaged (even though that would have meant a short extension).

[11]The disbursements claimed are allowed.

Result

[12]              The first and second defendants jointly are entitled to scale costs on a 2B basis, except for their costs memoranda, plus disbursements.

[13]              The third defendant is entitled to scale costs on a 2B basis, except for its costs memorandum, plus disbursements.

Gault J

3      Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; and Barry Park Investments Ltd v Body Corporate Number 95388 [2016] NZHC 1527 at [25].