Radioworks Limited v Commissioner of Inland Revenue HC Auckland CIV-2007-404-005853

[2011] NZHC 138

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-005853

BETWEEN  RADIOWORKS LIMITED Plaintiff

ANDTHE COMMISSIONER OF INLAND REVENUE

Defendant

CIV-2007-404-005854

AND BETWEEN            TV WORKS LIMITED Plaintiff

ANDTHE COMMISSIONER OF INLAND REVENUE

Defendant

Judgment:      9 February 2011 at 3:30 PM

JUDGMENT OF COURTNEY J AS TO COSTS

This judgment was delivered by Justice Courtney on 9 February 2011 at 3:30 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date……………………….

Solicitors:           Russell McVeagh, P O Box 3076 Shortland Street, Auckland 1140

Fax: [phone] – M Heron / A Whitehouse

Crown Law, P O Bx 2858, Wellington 6140

Fax: [phone] – R Roff

RADIOWORKS LTD V THE COMMISSIONER OF INLAND REVENUE HC AK CIV-2007-404-005853 9

February 2011

[1]      The plaintiffs were unsuccessful in a review of Abbott AJ’s decision allowing the defendant both general discovery and non-party discovery.  The plaintiff was also unsuccessful in its application for leave to appeal to the Court of Appeal from the review decision.  The defendant seeks costs in respect of all three hearings. I note that the application is made in this proceeding only, in which RadioWorks is the plaintiff but is clearly intended to relate to TVWorks as well, which is the plaintiff in related proceedings.

[2]      The defendant initially sought costs on a 2B basis, including for second counsel and disbursements relating to counsel’s travel and accommodation expenses between Wellington  and Auckland.   The plaintiffs’ counsel  indicated that  if  the defendant withdrew its claim for costs for a second counsel and did not claim the travel and  accommodation  costs  for  travel  between Wellington  and Auckland it would agree to the costs claim.   The objection to the travel and accommodation expenses was based on the assertion that the defendant could easily have engaged Auckland counsel.  The defendant duly withdrew his claim for costs in respect of second counsel.  However, he maintained the claim for travel and accommodation costs on the basis that Crown Law had been engaged to represent him and that travel and accommodation costs were reasonably necessary for the conduct of the proceeding.  I do not consider it unreasonable for the defendant to be represented by his counsel of choice in this matter and would allow the travel and accommodation costs for his Wellington-based counsel.

[3]      The plaintiffs have, however, requested that costs for these interlocutory applications not be determined now but instead follow the substantive trial.  Their reason is that they believe that ultimately discovery will be found to be unnecessary and the costs will be substantial.  I consider that it is appropriate to deal with costs now.   This matter has involved three applications, all of which the plaintiffs have failed on, and considerable time and effort by both parties.   If the plaintiffs are ultimately proved right then the matter can be dealt with by way of a further costs award once the substantive hearing is completed.

[4]      I accordingly make an order that the plaintiff pay the defendant the sum of

$11,488 in costs and $5,126.23 in disbursements in accordance with the schedule

attached to the defendant’s memorandum 19 January 2011.

P Courtney J