Property Sales Direct Ltd v Hawken Lane Development LP

[2022] NZHC 2847

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1435

[2022] NZHC 2847

UNDER

The Companies Act 1993 and the Limited Partnerships Act 2008

BETWEEN

PROPERTY SALES DIRECT LTD

Plaintiff

AND

HAWKEN LANE DEVELOPMENT LP

Defendant

On the papers:

At Auckland

Appearances:

N Flanagan and A Tapsell for the Plaintiff

E St John and S P Maloney for the Defendant

Judgment:

2 November 2022

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 2 November 2022 at 2 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:

Keegan Alexander, P O Box 999, Shortland Street, Auckland Heritage Law, P O Bo 96135, Auckland

(E St John, Barrister, Auckland P O Box 105 270, Auckland City, Auckland)

PROPERTY SALES DIRECT LTD v HAWKEN LANE DEVELOPMENT LP [2022] NZHC 2847 [2 November 2022]

[1]                 This judgment fixes costs on two earlier judgments issued on these proceedings:

(a)my judgment of 20 July 2022 dismissing claims by the plaintiff, Property Sales Direct Limited (“PSDL”) against Hawken Lane Development LP (“Hawken”) and allowing Hawken’s counterclaims against PSDL (“the substantive judgment”);1 and

(b)declining PSDL’s application to stay the substantive judgment (“the stay judgment”).2

[2]                 In both cases Hawken was awarded costs.3 In both cases Hawken has sought costs on a 2B basis.

[3]                 In relation to the substantive judgment Hawken’s calculation is, in substance, largely accepted by PSDL, save for the claim for second counsel in the total sum of

$9,560.    PSDL objects to paying second counsel on the basis “the case was not particularly complex and the plaintiff had only one counsel”.

[4]As Mr St John has pointed out however:

The plaintiff says that the case was not “complex”. That assertion is made with the benefit of hindsight. At the start of the trial, there were seven separate causes of action (five in the plaintiff’s statement of claim and two in the defendant’s counterclaim). The plaintiff also added a new cause of action during the hearing.

Those eight causes of action raised complex and wide-ranging issues. Counsel had to research and master the law and the evidence relating to each cause of action before trial. It was reasonable to have junior counsel to assist in that task.

[5]                 Moreover, as Mr St John noted, junior counsel for Hawken played a significant role in the course of Mr Cary’s evidence on behalf of PSDL as the PSDL briefs of evidence had not been updated to refer to the page numbers in the common bundle:

1      Property Sales Direct Limited v Hawken Lane Development LP [2022] NZHC 1735.

2      Property Sales Direct Limited v Hawken Lane Development LP [2022] NZHC 2318.

3      At [104] and [14] respectively.

As a result, Mr Maloney [then junior counsel for Hawken] had to go through the plaintiff’s briefs and update the references by hand, then state each document reference for the Court during the plaintiff’s evidence-in-chief. Such incidents show that the decision to have second counsel was reasonable and indeed assisted the plaintiff.

[6]                 In those circumstances I see no basis for PSDL’s objection to certification of second counsel. I therefore confirm that with regard to the substantive judgment PSDL is to pay Hawken costs of $76,958.00 together with disbursements of $1,730.00 – a total of $78,688.00.

[7]                 In contrast, the parties have reached agreement on 2B scale costs in relation to the stay judgment. Having checked the calculation I fix costs on the stay judgment in the sum of $6,095 together with disbursements in the sum of $160 – a total of $6,255.

[8]                 The total costs with regard to both judgments are therefore $83,053.00 together with disbursements of $1,890.00 – a total of $84,943.00.

Powell J