Polladio Holdings Limited v New India Assurance Company Limited

[2023] NZHC 1346

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-476-000030

[2023] NZHC 1346

BETWEEN

POLLADIO HOLDINGS LIMITED

Plaintiff

AND

THE NEW INDIA ASSURANCE COMPANY LIMITED

Defendant

Hearing:	On the papers
Judgment:	31 May 2023

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 31 May 2023 at 2.00 pm

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

Date:…………………………

Solicitors/counsel:

T C Gunn, Warkworth/M C Josephson, Mangawhai Keegan Alexander, Auckland

POLLADIO HOLDINGS LTD v THE NEW INDIA ASSURANCE CO LTD [2023] NZHC 1346 [31 May 2023]

Introduction

[1]    I refer to my judgment of 12 May 2023.1 I there found that the roof of the hotel was damaged in the course of a hail storm in Timaru on 20 November 2019, that the hail damage to the roof of the hotel constituted accidental loss, but that the plaintiff, Polladio Holdings Ltd’s (Polladio) losses were excluded by various clauses in the policy. I also found that Polladio had breached other clauses in the policy and that the defendant company, the New India Assurance Co Ltd (New India), was entitled to decline to pay the claim, even if the same had not been excluded by the terms of the policy. I noted that New India was the successful party and that it was entitled to its reasonable costs and disbursements.

[2]    For some reason, the judgment did not promptly find its way to New India. As a result, it did not file its claim for costs and disbursements within the timelines fixed by me. Nor were counsel able to confer.

[3]    New India seeks costs on a 2B basis, in the total sum of $46,366, together with disbursements of $10,965,30. Included in these costs are the costs of second counsel and New India seeks certification in that regard.

[4]    Polladio seeks to address two issues raised in New India’s claim for costs. First, it notes that New India’s affidavit of documents contained only 14 documents and that only one of them was unique. The others were reproductions of Polladio’s own documents. On that basis, it is asserted that the amount claimed for discovery—

$4,780—is unreasonable. Further, it is asserted that there should be no allowance for second counsel.

[5]    Notwithstanding that my judgment did not envisage the filing of a memorandum in reply, New India has done so. It seeks to defend its claim to the amount sought for discovery and asserts that second counsel was necessary given the nature of the proceedings.

1      Polladio Holdings Ltd v The New India Assurance Co Ltd [2023] NZHC 1147.

Analysis

[6]    All matters in relation to costs are at the discretion of the Court.2 The discretion is not however unfettered. It is qualified by the applicable costs rules and by principles adopted in various established authorities.3

[7]    Here, New India was the successful party and there is no dispute that it is entitled to its costs and disbursements. It seeks costs and disbursements on a 2B basis. I am satisfied that costs should be fixed on this basis. A normal amount of time considered reasonable would have been required in relation to the proceedings and they were of average complexity, requiring counsel of skill and experience considered average in the High Court. There does not appear to be any error in most of the matters dealt with in the schedule prepared by New India, but an issue has arisen in relation to item 20. New India claims $4,780 for the preparation of a list of documents on discovery. It claims for two and a half days at $2,390 per day.

[8]    There is no dispute that the affidavit of documents lists only 14 documents. All but one were reproductions of Polladio’s own documents. I agree with Polladio that the amount claimed is excessive. Rule 14.2(1)(f) limits an award of costs to costs incurred by the party claiming the same. I accept that counsel for New India was required to prepare the affidavit of documents but I cannot see that this task would have taken two and a half days. In my judgment, the actual time taken would have been half a day, justifying an award of costs of $1,195.

[9]    Nor can I see that second counsel was necessary. The matters raised by the proceedings were relatively straightforward. The briefs of evidence were not extensive. There were relatively few documents in issue. Accordingly, I decline to certify for second counsel.

2      High Court Rules 2016, r 14.1.

3      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]; Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 at [27]; Kinney v Pardington [2021] NZCA 174 at [1].

[10]   For the reasons I have set out, I award costs in favour of New India and against Polladio, in the sum of $39,196.00. I award disbursements against Polladio and in favour of New India in the sum of $10,965.30.

Wylie J