Prophecy Networks Ltd v Revera Ltd

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-709 [2015] NZHC 899

BETWEEN

PROPHECY NETWORKS LTD

Plaintiff

AND

REVERA LTD Defendant

Hearing:	(On the papers)
Counsel:	C R Carruthers QC and J L W Wass for Plaintiff J A Craig and S S R Meares for Defendant
Judgment:	1 May 2015

JUDGMENT OF BREWER J (Costs)

This judgment was delivered by me on 1 May 2015 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Quigg Partners (Wellington) for Plaintiff

Simpson Grierson (Auckland) for Defendant

PROPHECY NETWORKS LTD v REVERA LTD [2015] NZHC 899 [1 May 2015]

Introduction

[1]      In my judgment in Prophecy Networks Ltd v Revera Ltd, I dismissed the plaintiff’s claim and held that the defendant is entitled to costs, which were to be fixed on a 2B basis and to be calculated by the Registrar if the parties cannot agree.1

[2]      The parties cannot agree.  The grounds of disagreement require determination by me, not the Registrar.

[3]      There are three issues:

(a)       To what scale costs on a 2B basis is the defendant entitled? (b)         Is the defendant entitled to increased costs?

(c)       Is the defendant entitled to its disbursements for an expert witness?

To what scale costs on a 2B basis is the defendant entitled?

[4]      The defendant seeks scale costs on a 2B basis of $39,700.50.   The parties agree on the calculation except for three items.

(a)      Item 24 – Preparation of written submissions for interlocutory application for summary judgment

[5]      The plaintiff applied for summary judgment but withdrew the application two days  before the defendant was  required to  file submissions in opposition.   The defendant claims an allowance for the preparation of written submissions for the summary judgment application.

[6]      In my view, the defendant is not entitled to an allowance for the preparation of written submissions.   The defendant was not actually required to file the submissions and their preparation no doubt assisted the defendant in the trial before me.  It was not wasted expense.  The cost of preparing the submissions is adequately compensated by the allowance for the defendant’s preparation for the trial.

(b)      Item 32 – Defendant’s preparation of authorities, and the common bundle

[7]      The defendant seeks an allowance of two days for the preparation of the common bundle.  It was the plaintiff who prepared the common bundle.  The actions of the defendant in relation to the common bundle were: (a) to provide a list of documents to be included in the common bundle; (b) to review the index of the common bundle; and (c) to provide copies of 13 authorities to the Court as part of

opening  and  closing  submissions.2    The  common  bundle  was  not  large  and

complicated and did not require significant co-ordination between the parties.  I fix the allocation of time at 0.5 days.

(c)      Item 35 - Second and subsequent counsel if allowed by Court

[8]      The  defendant  submits  that  costs  should  include  the  presence  of  second counsel.   I disagree.   This…