RACHAEL KEIR and JOHN RICHARD KEIR s AND ROBERT SIMMS and LYNETTE JEAN SIMMS s

[2024] NZHC 2816

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000458

[2024] NZHC 2816

BETWEEN

RACHAEL KEIR and JOHN RICHARD KEIR
Plaintiffs

AND

ROBERT SIMMS and LYNETTE JEAN SIMMS

Defendants

Hearing:

On the papers

Appearances:

N Woods for the Plaintiffs

D MacKenzie for Bruce Simms, Non-Party

Judgment:

30 September 2024

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 30 September 2024 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Chris Ritchie Law, Wellington Rice Craig, Auckland

Thomas Gibbons Law, Auckland

D Bigio KC, Auckland
D MacKenzie, Wellington

KEIR v SIMMS [2024] NZHC 2816 [30 September 2024]

Introduction

[1]    On 19 July 2024 the Court entered judgment against Bruce Simms on the plaintiffs’ non-party discovery application, ordering Mr Simms to make discovery of ten categories of documents sought by the plaintiffs.1

[2]    Mr Simms seeks an order under r 8.22(3) of the High Court Rules 2016 for payment of his actual and reasonable costs in attending to the plaintiffs’ application for discovery orders against him.

[3]    The costs incurred by Mr Simms from 29 August 2023 to 31 May 2024 amount to $24,141.21 (including GST and disbursements). Of this, $2,460 (excluding GST) concerns work between 29 August 2023 to 19 October 2023, seeking to understand the plaintiffs’ initial request for non-party discovery. A further $17,550 (excluding GST) concerns work from 13 November 2023 to 9 May 2024 opposing the interlocutory application. Mr Simms also seeks his actual and reasonable costs from 19 July 2024 associated with complying with the discovery order made by the Court.

[4]    The plaintiffs accept that they should pay Mr Simms’ reasonable costs of complying with the non-party discovery order, except the costs involved in discovery of items 12 and 14, which they say ought to lie with the defendants.

[5]    However, they maintain that Mr Simms took a partisan approach to the discovery application, and was, overall, unsuccessful. Therefore, they maintain that they should be paid their scale costs for the application on a 2B basis, and disbursements, of $9,426.

Legal principles

[6]Rule 8.22(3) of the High Court Rules provides:

If an order is made under r 8.20(2) or 8.21(2), the Judge may, if the Judge thinks it just, order the applicant to pay to the person from whom discovery is sought the whole or part of that person’s expenses (including solicitor and client costs) incurred in relation to the application and in complying with any order made on the application.

1      Keir v Simms [2024] NZHC 1996.

[7]    In Harvey v Harvey, Lang J required the applicant to pay the non-party’s actual and reasonable costs where the non-party had successfully opposed the application, commenting that:2

… although costs remain at the discretion of the Court, the courts generally proceed on the basis that a non-party will be reimbursed on an indemnity basis for its reasonable costs in responding to the application.

[8]    In Sain v Erceg, Associate Judge Paulsen took this approach to an order made against non-parties who opposed the application, commenting:3

In my view the non-parties are entitled to their actual and reasonable costs in their defence of this application and in complying with the orders that I will make. The non-parties acted entirely reasonably in opposing the application and have been successful in preventing orders being made on the terms that were sought…

[9]    In the more recent decision of Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd, Lang J said:4

The courts regularly make orders requiring a party to a proceeding to meet the reasonable legal costs incurred by a non-party in responding to an application for non-party discovery. This reflects the principle that non-parties have no stake or interest in the proceeding. They should not be put to unnecessary expense in providing assistance to those who have an interest in the outcome.

[10]   On the other hand, in Westpac New Zealand Ltd v Adams Associate Judge Osborne (as he then was) held that costs should follow the event where the non-party had unsuccessfully opposed the application and displayed a degree of partisanship that departed from what might traditionally be expected from a neutral non-party.5

Analysis

[11]   Costs are always at the discretion of the Court. Rule 8.22(3) is explicit that an order under the rule may be made if the Judge thinks it just.

[12]   Mr Simms is not a neutral non-party. He is the son of the defendants, and self- evidently has a personal interest in the proceeding. He holds relevant documents

2      Harvey v Harvey [2020] NZHC 2405, at [5] (footnotes omitted).

3      Sain v Erceg [2022] NZHC 1010 at [40].

4      Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd [2023] NZHC 754 at [10].

5      Westpac New Zealand Ltd v Adams [2013] NZHC 3113 at [73]–[74].

because he effectively assumed management of the farm for the defendants from around June 2019. In a sense, he stands in the shoes of the defendants in relation to discovery of these documents.

[13]   The application was materially successful. The Court ordered discovery of a significant portion of the categories of documents sought. Documents relating to health and safety compliance were refused as irrelevant. No orders were made in relation to two vague and undefined categories.

[14]   Mr Simms took the position that all the documents were irrelevant to issues in dispute in the hearing, and therefore that the discovery was not necessary. The Court found against Mr Simms on that fundamental proposition.

[15]   However, it is acknowledged that the plaintiffs’ approach was unhelpful. The plaintiffs did not focus on how the documents were relevant to issues in dispute and were preoccupied with their “narrative”. The application included categories that were obviously not relevant and two vague catch-all categories.

[16]   Balancing these considerations, I find that the plaintiffs should pay Mr Simms’ actual and reasonable costs associated with the initial request for discovery prior to the application being made ($2,875 including GST) and the costs of complying with the discovery orders (including actual and reasonable costs associated with attempts to refine category 26 after the judgment was delivered).

[17] Costs in relation to the non-party discovery application should follow the event with a reduction of 20 per cent to reflect that the plaintiffs were not wholly successful and the observations above at [15].

Result

[18]   I order the plaintiffs to pay Mr Simms’ costs of $2,875 (including GST) for services between 29 August 2023 to 31 October 2023, and his actual and reasonable costs from 19 July 2024 in complying with the discovery orders (including negotiations about category 26).

[19]   I order Mr Simms to pay the plaintiffs their scale 2B costs less 20 per cent ($6,501) and disbursements related to the application for non-party discovery.

Associate Judge Gardiner