RED STAG TIMBER LIMITED AND JUKEN NEW ZEALAND LIMITED

[2024] NZHC 2643

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002753

[2024] NZHC 2643

BETWEEN

RED STAG TIMBER LIMITED

Plaintiff

AND

JUKEN NEW ZEALAND LIMITED

Defendant

Hearing:

(On the papers)

Counsel:

N Flanagan, E Rutherford, R Kendall and A Tapsell for Plaintiff

A R Galbraith KC, C L Bryant, G Luen, C Harnett and J van Riele for Defendant

Judgment:

12 September 2024

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 12 September 2024 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Hesketh Henry, Auckland Counsel:    A R Galbraith KC, Auckland

RED STAG TIMBER LTD v JUKEN NEW ZEALAND LTD [2024] NZHC 2643 [12 September 2024]

Introduction

[1]                 In a judgment delivered on 10 May 2024, the Court dismissed Red Stag Timber Limited’s (Red Stag) claim against Juken New Zealand Limited (JNL) and entered judgment for JNL.1 As to costs the Court said:

[429] Given the complexities involved in the case I consider the case is appropriately categorised as category 3. I allow for second counsel for the hearing. There will also be some instances where time band C as opposed to time band B would be appropriate given the volume of documentation involved, but that may not apply to all steps.

[430] However, as there may have been a relevant exchange on the issue of costs, I formally reserve the issue of costs.

[431] If counsel are unable to agree, costs will be dealt with by way of exchange of memoranda. JNL is to file and serve its memorandum within 30 working days of the date of delivery of this judgment. Red Stag is to respond within 20 working days later with any reply to be filed within a further 5 working days. The Registrar is to then refer the matter to me to be dealt with on the papers. The original memoranda are to be limited to 10 pages (although schedules may be filed to provide details of cost assessments and witness expenses sought). Any reply is to be limited to five pages.

[2]Counsel have exchanged submissions as to costs.

JNL’s application

[3]                 JNL seeks time allowance band C for certain pretrial steps and also seeks an uplift from scale for the preparation for and conduct of the trial. In total in its reply submissions it seeks costs of $716,336 together with disbursements (primarily witness expenses) of $1,009,303.

Red Stag’s response

[4]                 Red Stag disputes that band C is appropriate in all instances sought by JNL and submits that there should be no uplift for the preparation for and conduct of the trial. It also challenges a number of the witness expenses claimed by JNL. Red Stag calculates costs according to scale at $253,982 and disbursements of $537,778.

1      Red Stag Timber Ltd v Juken NZ Ltd [2024] NZHC 1151.

Principles

[5]                 The principles applying to the determination of costs are established by the rules and are settled by authority. A number of them are applicable to the current application. Relevantly, a costs award should reflect the complexity and significance of the proceeding,2 and the Court may order increased costs if the nature of the proceeding was such that the time required would substantially exceed the time allocated under band C or some other reason exists which justifies the Court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.3

Preparation for trial/hearing costs

[6]                 The principal difference between the parties, at least in relation to the costs (as opposed to disbursements which are dealt with below) is JNL’s application for increased costs for preparation for the hearing and for the trial itself.

[7]                 JNL seeks an uplift from the scale for costs for preparation for trial and for the hearing on the basis of 50 days for preparation and 27 days for the hearing (being the number of working days from the commencement of the hearing on 12 February to closing submissions on 19 March 2024). Calculated on that basis JNL seeks costs for preparation of $353,000 and the hearing of $142,960, in total $495,960.

[8]                 Red Stag takes the view that preparation should be limited to nine and a half days and the appearance at trial calculated on the basis of 11½ days, being the actual sitting time measured in quarter days in accordance with item 34 in the third schedule to the rules. On that basis it calculates the costs of preparation of $67,070 and hearing of $60,892 (if second counsel is allowed for) in total $127,962.

[9]                 JNL says the scale allowance is inadequate in this case. While the actual hearing time was less than that allocated, the sliding scale allowance in the third schedule for preparation based on the actual hearing time does not represent the work required for preparation in particular in this case. JNL seeks to justify the claim for

2      High Court Rules 2016, r 14.2(1)(v).

3 R 14.6(3)(a) and (d).

preparation based on the initial estimate of the trial being 10 weeks (50 working days) and notes that 20 hearing days were recorded by the Court, of which 18 were sitting days. Taking it in the round it seeks 100 days for pre-trial steps, which it says can be justified in a number of ways:

(a)two days preparation for each of the allocated time of 50 days;

(b)four days for each brief and an allowance for preparation; or

(c)a ratio of 3.7 to 1 (100 days of preparation: 27 days occupied by the hearing).

[10]              JNL refers to a number of cases where the Court has previously allowed uplifts above the allowance provided for by the rules: Strathboss Kiwifruit Ltd v Attorney- General; Mainzeal Property and Construction Ltd (in liq) v Yan; Trustpower Ltd v CIR; and Cridge v Studorp.4 In those cases the Court made allowances based on the briefs involved. The total of days allowed varied between a ratio of 3 to 1, and 4.4 to 1.

[11]              In response, Red Stag submits that the case was of average complexity by the standard of the Court’s civil jurisdiction and notes that a number of the briefs were from merchants and were not complex. While there was some expert evidence, it was no more complex than an average civil claim.

[12]              I disagree with the submission for Red Stag that the case was no more than of average complexity in relation to the Court’s civil jurisdiction. Red Stag’s claim was for a substantial sum of money and involved a complex review of the relevant regulatory framework. A number of expert witnesses gave evidence in relation to the standards that applied to the market Red Stag and JNL operate in. The parties also called expert economic and accounting evidence. The Court recognised the complexity of the proceeding, including the evidence canvassed in some detail during the hearing, by fixing category 3 as the appropriate costs category.

4      Strathboss Kiwifruit Ltd v Attorney-General [2019] NZHC 62; Mainzeal Property and Construction Ltd (in liq) v Yan [2019] NZHC 1637; Trustpower Ltd v CIR [2014] NZHC 3072; and Cridge v Studorp [2022] NZHC 2024.

[13]              Further, while it is correct that on a number of days the Court only sat for a limited time, that was on the basis that the Court had taken time to read the evidence- in-chief of all witnesses in advance so that the witnesses called were only called for the purposes of very brief supplementary evidence-in-chief with the focus being on their cross-examination. While that considerably reduced the amount of Court hearing time, the amount of work required in terms of preparation for the hearing and also preparation for the cross-examination of the witnesses, (one after another in some instances), was not reduced and must be taken into account. If the case had proceeded in the usual way with the witnesses reading their briefs before cross-examination, the hearing time required would have been significantly longer. The same amount of preparation for each witness was required as would have been the case if the evidence- in-chief had been read in that way. However, having observed that, I consider JNL’s claim for 100 days’ preparation to be overstated.

[14]              I consider the answer lies somewhere between the two approaches taken by the parties. I accept that the appropriate approach to the allowance for preparation and for the trial itself should generally be based on the number of sitting days. As noted, the Court has recorded 18 sitting days. In my assessment, a fair allowance is an uplift of twice that, or 36 sitting days, for the preparation even though they were not full sitting days. As noted, the preparation required was the same as if they were full sitting days. On that basis, but otherwise applying the time allowed for preparation on the sliding scale from the schedule, the allowances for briefing, lists of issues and authorities and trial preparation would be $76,777.50 in each case or in total $153,555. Then, basing the allowance for the appearance at trial on the 18 sitting days (even though part days) the allowance for counsel would be $63,540. The allowance of second counsel, one- half of that, would be $31,770, in total $95,310. The total costs for preparation and appearance at the hearing would be $248,865.

Band C

[15]              As noted, JNL also seeks costs on a time band C basis for a number of the steps taken in the proceeding.

[16]Rule 14.5(3) provides:

Determination of reasonable time

(1)For the purposes of rule 14.2(1)(c), a reasonable time for a step is—

(a)the time specified for it in Schedule 3; or

(b)a time determined by analogy with that schedule, if Schedule 3 does not apply; or

(c)the time assessed as likely to be required for the particular step, if no analogy can usefully be made.

(2)A determination of what is a reasonable time for a step under subclause (1) must be made by reference—

(a)to band A, if a comparatively small amount of time is considered reasonable; or

(b)to band B, if a normal amount of time is considered reasonable; or

(c)to band C, if a comparatively large amount of time for the particular step is considered reasonable.

[17]              Red Stag takes issue with JNL’s claim for costs calculated on a band C basis in relation to aspects of the discovery and pleading. Red Stag makes the point that the parties had agreed to standard discovery with Red Stag disclosing just over 2,150 documents and JNL disclosing 773 documents. It also notes that supplementary discovery provided across December 2021 through to July 2022 resulted in a relatively limited number of documents. Red Stag then says band A is appropriate for the costs of inspection of the additional 60 documents in October 2022.

[18]              JNL supports its claim for band C for discovery on the basis that the ongoing changes to Red Stag’s claim meant there were two distinct discovery exercises based on the different pleadings between the amended ASOC and the 4ASOC.

[19]              JNL is entitled to the costs associated with the various iterations of discovery but on review of the steps taken in relation to discovery, I am not satisfied that apart from the first discovery and inspection exercise, which would have required a comparatively large amount of time, the remaining and supplementary discovery exercises support a band C allowance. However, I reject Red Stag’s suggestion that band A should be applied to the supplementary discovery. Band B is appropriate for that also.

Pleadings

[20]              As to the pleadings, I accept that Red Stag changed the nature of its claim which required a substantive repleading, however, I do not accept that band C is appropriate with respect to each of the numerous amended statements of defence. Again, while JNL is entitled to costs on time band C for amended pleadings where the nature of the claim changed, a number of the amendments were relatively minor, albeit important. Band C is appropriate for the first and the substantively amended statement of defence. Otherwise I agree with Red Stag’s submission that band B is appropriate for the remaining amended statements of defence.

Case management

[21]              Red Stag also challenges JNL’s claim for preparation for various case management conferences, and some joint memoranda. Red Stag takes issue with JNL’s claim for costs for preparation for six case management conferences. Red Stag also suggests that some of the memoranda claimed for, were not for case management conferences or mentions hearings and some were for joint memoranda. Red Stag makes the point that it can be quicker for a party to file its own memoranda which will require less consultation and no need to seek further instructions.

[22]              JNL justifies its claims for the time required to prepare on an equivalence basis for preparation for a number of conferences because of the changes in Red Stag’s claim.

[23]              While I accept that JNL would have been required to expend more time on preparation for some conferences because of Red Stag’s approach to the litigation, as the case progressed, a number of the matters raised at the case management conferences repeated issues that had been addressed in earlier memoranda or repeated a consistent theme which the parties would have been familiar with. There was no need to “reinvent the wheel” or go back to basics to prepare each of the memoranda for each conference. I consider an appropriate response is to allow one-half of the number of claims for costs for preparation. I also allow the claims for the joint memoranda. The rules encourage the parties to file joint memoranda. At the end of the day that is of more assistance to the Court and ultimately can lead to resolution of

the issues. The approved adjustments are made in the schedule attached to this judgment.

Disbursements

[24]              A significant difference between the parties is in relation to the disbursements claimed, particularly the expert witnesses’ costs.

[25]              Red Stag says travel and accommodation expenses cannot be claimed where VMR was a viable option for a witness to give their evidence or, in the alternative, if the Court considered in-person appearances were required, the associated accommodation and related expenses ought to be limited to the day the witnesses gave their evidence. Further, it says a number of the expert disbursements sought are unreasonable, particularly in the case of Dr Edwards. Finally it makes the point JNL failed to provide detailed expenses as required. For those reasons it submits the disbursements should be limited to a range of between approximately $537,778 and

$549,073, which includes a reduction for unnecessary travel and accommodation expenses.

[26]              In its reply submissions, JNL provided further evidence of the detailed disbursements for a number of the witnesses. JNL also makes the point that the experts were involved not only in preparing briefs in responding to the evidence of Red Stag’s experts, but also were involved in advising counsel, reviewing the reply evidence and the additional documents and providing input into cross-examination. I accept that is a fair point.

[27]              In this case, some witnesses did give their evidence by VMR. However, the Court was assisted by seeing the witnesses in person, particularly when the focus of the hearing was on the cross-examination of the witnesses who were called to give viva voce evidence. Again, that was particularly so in the case of the expert witnesses of whom there were a number. I consider an appropriate balance was struck in this case between the witnesses who were called to be cross-examined viva voce and the witnesses who gave their evidence by VMR. I also note that Red Stag’s suggestion that some witnesses did not need to be present was not raised with the Court during

the hearing. It would have been open for counsel for Red Stag to have either indicated they did not wish the witnesses to be called in person, or to have suggested VMR.

[28]              The costs of the expert witnesses sought by JNL in this case fall within the definition of disbursements in r 14.12(1). They must be approved by the Court under r 14.12(2)(a)(i). In each case I accept the disbursements (being witnesses’ fees and expenses) were specific to the conduct of the proceeding and that the relevant evidence was reasonably necessary for the conduct of the proceeding. For example, Red Stag put in issue the Scion and Biotica reports. JNL was obliged to brief and call Dr Singh and Mr Powell.

[29]              I accept that where witnesses travel from out of town then their necessary accommodation and related expenses, including prior to or after they had given their evidence, (depending on the practicality of the travel arrangements) is appropriate and reasonably necessary.

[30]              I also accept that in some instances a claim for accommodation and related expenses for more than one day was necessary and appropriate. For example, Mr Jordan was the primary factual witness for JNL. His presence in Auckland in advance of JNL’s opening was justified and, I accept, reasonably necessary. Further, Mr Smith was JNL’s compliance manager. His evidence was relevant to a number of the issues the experts dealt with. His availability to support the trial team and liaise with experts was again reasonably necessary.

[31]              I also accept that it was important for JNL’s presentation of its case for JNL’s counsel and lawyers to have time with Dr Edwards to discuss the developments with Red Stag’s evidence to review the changes to JNL’s experts’ evidence and also to prepare Dr Edwards’ evidence. Again, the claim for three nights’ accommodation and associated expenses were reasonably necessary.

[32]              The principal issue is whether the actual disbursements of witnesses’ fees and associated expenses charged are reasonable in amount.

[33]              The principal disbursement that Red Stag objects to is Dr Edwards’ and his firm, Charles River Associates’ fees of $661,449.33.

[34]              On Red Stag’s analysis it appears Dr Edwards spent over 633 hours at $800 an hour in reviewing and preparing his brief, which totals approximately $507,000. Red Stag says that is exorbitant, particularly where his colleagues’ fees were an additional

$118,164. Red Stag notes that JNL seeks to justify the fees of Dr Edwards (and his colleagues) as they “worked around the clock”. Red Stag makes the point that it appears there was a duplication of work and effort between Dr Edwards and his colleagues. They suggest Dr Edwards’ fees ought to be reduced substantially to strike a fair balance between the expert work actually completed and a just result of disbursements. They suggest the allowance for Dr Edwards’ hours could appropriately be reduced to 200 hours to provide a reasonably recoverable fee of $160,000. Taken in addition to the fees charged by the remaining Charles River Associates’ experts the total fee for that part of the case would be $314,499, a reduction of $347,000, which it submits would be proportionate to the evidence reviewed and provided.

[35]              Red Stag relies upon the decision of Katz J in Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Ltd.5 In that case on the information before the Judge Katz J was not satisfied that the entirety of the expert fees Mobil sought to recover were reasonably necessary for the conduct of the proceeding and reasonable an amount. The Judge reduced the experts’ fees by 30 per cent.

[36]              However, each case must of course depend on its own facts. Katz J was influenced in part by the fact that on her analysis the expert invoices raised a number of queries and concerns with, for example, the fees of individual fee earners apparently varying from time to time.

[37]Dr Edwards’ fees (and his firm’s fees) are broken down into primarily:

(a)reviewing documents from Red Stag’s briefs and preliminary analysis

– $81,350 (25 September 2023);

5      Auckland Waterfront Development Agency Ltd v Mobil Oil New Zealand Ltd [2015] NZHC 470.

(b)preparing brief of evidence and damages model, review supplementary briefs – $85,800 (24 November 2023);

(c)preparing brief of evidence and damages model, review supplementary briefs – $158,300 (11 December 2023);

(d)preparing brief of evidence and damages model – $87,400 (10 January 2024);

(e)reviewing reply briefs, review damages model – $86,450 (1 March 2024);

(f)considering hot tub proposal, reply evidence, prepare supplementary evidence, trial preparation, court attendance, travel and hotel –

$131,129.52 (13 March 2024).

[38]              I agree that the amounts claimed by Dr Edwards and his team are very significant. However, JNL faced a substantial claim by Red Stag, which was only quantified late in the piece. Ultimately the approval of experts’ fees is a matter for the Court. I accept Dr Edwards’ rate of AUD 800 an hour is comparable to that of New Zealand professionals. It is half the rate the economists used in Houghton v Saunders,6 in 2015 of USD 995. Mr Hayward’s (the accountant called by JNL) charge out was NZD 750. It is clear from the modelling and the discussion of the expert evidence the level of detail that Dr Edwards had gone into in his evidence.

[39]              However, the total fees charged were substantially increased by the claim by others in Dr Edwards’ firm. While a degree of support was appropriate, there inevitably would have been a degree of duplication. I consider the claim should be adjusted. I consider a reduction of 25 per cent in the claim for the work from 25 September to 1 March 2024 as an appropriate reduction bearing in mind that JNL carries the burden of satisfying the Court the amount claimed is reasonable in amount. I accept that the work claimed in the 18 March 2024 account was necessary, and reasonable in amount, although I round it down to $130,000 as consideration of the

6      Houghton v Saunders [2015] NZHC 548.

hot tub proposal should have been straightforward. That leads to a reduced sum for Dr Edwards and Charles River Associates of $534,475.

[40]              Red Stag seeks further reductions for other experts, for example, it challenges Dr Singh’s claim for 40 hours in completing her work which led to a six page brief of evidence. As noted, her evidence was necessary. While her brief was relatively short, she had to review the relevant trial reports. In fact she was questioned about a separate interlaboratory report. While she accepted she made an error when discussing that report, it was not material. I do not consider it requires an adjustment to the claim for her expenses.

[41]                  JNL also proposed that the Scion and Biotica reports be taken as read but that proposal was rejected. For that reason it became necessary for Dr Singh and Mr Powell to be called.

[42]              Red Stag next notes that 59 of the 150 hours charged by Dr Greaves was spent preparing his brief and reviewing documents and other briefs. Red Stag considers it unreasonable that a further 59½ hours was then charged by Dr Greaves in February and March 2024 following commencement of the trial. It also challenges the claim for his expenses.

[43]              I agree that the claim by Dr Greaves for preparation appears excessive given the scope of his evidence. As it stands it is unreasonable.  I reduce it by 20 per cent.  I also accept there should be an adjustment to the accommodation claimed. I accept there was no need for Dr Greaves to remain in Auckland for the period 4–7 March.

[44]Again, in relation to Mr Gardiner, Red Stag suggests the disbursement for

21.75 hours for trial preparation was not proportionate. I consider the claim to be reasonable in amount.

[45]              As to Mr McCreedy, Red Stag notes that JNL seeks to claim for two trips and seeks a reduction of 50 per cent in his fees. I do not consider Mr McCreedy’s fee to be unreasonable. Mr McCreedy was an important witness for JNL.

[46]              Finally, in relation to Mr Haywood, the expert accountant, Red Stag suggests that in the absence of narrations a fair reduction, taking account of the number of persons involved in preparation of the evidence, would leave a figure of $71,094.27. In the context of the case JNL faced I consider Mr Haywood’s fees to be reasonable, but he did spend some time in an affidavit seeking further disclosure of documents I ultimately did not consider necessary. I reduce the claim for his expenses related to that by 10 per cent.

[47]              Again, I have provided for what I consider to be appropriate adjustments and other relatively minor adjustments in relation to disbursements in the attached schedule.

Result

[48]There will be an order for costs in JNL’s favour against Red Stag in the sum of

$430,406.00, together with disbursements of $889,942.89.

Venning J

SCHEDULE 1

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
1.	22 Dec 2017	Review claim and draft statement of defence	2 Commencement of defence by defendant	C	6	$21,180
2.	Preparation for first case management conference (including discussion about discovery)	10 Preparation for first case management conference (including discussion about discovery)	B	0.4	$1,412
3.	1 Feb 2018	Joint memorandum enlarging timetable for CMC	11 Filing memorandum for first or subsequent case management conference or mentions hearing	A	0.2	$706
4.	26 Feb 2018	JNL memorandum for CMC	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
5.	20 Jun 2018	Joint memorandum (proposed timetable for settling pleadings and addressing categories of discovery) (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
6.	Preparation for conference on 13 March 2019 following delivery of Associate Judge Bell’s judgment (including discussion about discovery and pleadings) (step not listed in Sch 3, 10 used as comparator)	10* Preparation for first case management conference (including discussion about discovery)	DISALLOWED
7.	4 Mar 2019	Joint memorandum for CMC (proposed timetable for amended pleadings)	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
8.	12 Mar 2019	Joint memorandum (seeks adjustment to timetable) (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	A	0.2	$706
9.	10 May 2019	Defence to first amended statement of claim	9 Pleading in response to amended pleading	B	0.6	$2,118
10.	10 May 2019	Notice requiring further particulars of claim (step not listed in Sch 3, 16 used as comparator)	16* Notice to answer interrogatories	B	1	$3,530

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
11.	Preparation for case management conference on 15 August 2019 (including discussion about discovery) (step not listed in Sch 3, 10 used as comparator)	10* Preparation for first case management conference (including discussion about discovery)	DISALLOWED
12.	13 Aug 2019	JNL memorandum for CMC	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
13.	6 Dec 2019	JNL memorandum regarding Red Stag’s request to enlarge the timetable for discovery (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	A	0.2	$706
14.	16 Dec 2019	Discovery by Red Stag	21 Inspection of documents	C	6	$21,180
15.	19 Dec 2019	Discovery by JNL	20 List of documents on discovery	C	7	$24,710

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
16.	8 Jul 2020	Defence to 3ASOC	9 Pleading in response to amended pleading (payable regardless of outcome except when formal or consented to)	C	2	$7,060
17.	6 Aug 2020	Reply to notice by Red Stag seeking further particulars of defence (step not listed in Sch 3, 17 used as comparator)	17* Answer to interrogatories	B	1	$3,530
18.	14 Aug 2020	Joint memorandum seeking timetable directions (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
19.	28 Aug 2020	Joint memorandum seeking revised directions and a hearing date for anticipated interlocutory applications (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
20.	30 Oct 2020	Joint memorandum seeking timetable directions (Red Stag’s further discovery, defence to 4ASOC) (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
21.	11 Nov 2020	Defence to 4ASOC	9 Pleading in response to amended pleading (payable regardless of outcome except when formal or consented to)	B	0.6	$2,118
22.	25 Nov 2020	Joint memorandum seeking amendment to discovery timetable (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
23.	4 Dec 2020	JNL memorandum updating Court on Red Stag’s supplementary discovery and possible application (step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
24.	20 Jan 2021	Supplementary discovery by Red Stag (documents provided November and December 2020)	21 Inspection of documents	B	1.5	$5,295
25.	27 Apr 2021	Second supplementary discovery by Red Stag	21 Inspection of documents	B	1.5	$5,295
26.	Preparation for case management conference on 8 December 2021 including discussion about discovery and pre-trial orders (step not listed in Sch 3, 10 used as comparator)	10* Preparation for first case management conference (including discussion about discovery)	B	0.4	$1,412

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
27.	7 Dec 2021	Joint memorandum for CMC addressing parties’ discovery, readiness for trial and pre-trial orders.	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
28.	8 Dec 2021	Conference	13 Appearance at first or subsequent case management conference	B	0.3	$1,059
29.	4 Feb 2022	Supplementary discovery by JNL (provided 21 Dec 2021, sworn 4 Feb 2022). A further affidavit with additional documents was provided on 25 July 2022.	20 List of documents on discovery	B	2.5	$8,825
30.	Preparation for case management conference on 30 March 2022 including discussion about discovery (step not listed in Sch 3, 10 used as comparator)	10* Preparation for first case management conference (including discussion about discovery)	DISALLOWED
31.	29 Mar 2022	JNL memorandum for CMC (further discovery required from Red Stag, challenges to JNL’s discovery, timetable for interlocutories if required)	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
32.	30 Mar 2022	Conference	13 Appearance at first or subsequent case management conference	B	0.3	$1,059
33.	24 May 2022	Joint memorandum seeking variation of timetable (Step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
34.	26 Jul 2022	JNL memorandum regarding timetable issues (Step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
35.	20 Oct 2022	Third supplementary discovery by Red Stag / inspection by JNL	21 Inspection of documents	B	1.5	$5,295
36.	28 Jun 2023	JNL memorandum responding to request from Court for update on status of proceeding. The Court of Appeal judgment has been delivered, Red Stag has filed the 5ASOC, a notice to answer interrogatories and an application for discovery. (Step not listed in Sch 3, 11 used as comparator.)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	C	1	$3,530

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
37.	Preparation for case management conference on 20 July 2023 (Step not listed in Sch 3, 10 used as comparator).	10* Preparation for first case management conference (including discussion about discovery)	B	0.4	$1,412
38.	19 Jul 2023	JNL memorandum for CMC. Red Stag has filed the 6ASOC, which does not comply with the Court of Appeal judgment. Amendments to pre-trial timetable required.	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
39.	20 Jul 2023	Conference	13 Appearance at first or subsequent case management conference	B	0.3	$1,059
40.	4 Aug 2023	Joint memorandum identifying outstanding issues and seeking an extension of timetable for parties to confer on those issues (Step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
41.	11 Aug 2023	JNL memorandum re interlocutory issues and timetable (Step not listed in Sch 3, 11 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
42.	16 Aug 2023	JNL r 9.11 notice	More equivalent to preparation for case management conference	B	0.4	$1,412
challenging admissibility of
evidence (step not listed in
Sch 3, 18 used as
comparator)
43.	Preparation for case	10* Preparation for first case management conference (including discussion about discovery)	B	0.4	$1,412
management conference
on 29 August 2023
(Step not listed in Sch 3, 10
used as comparator)
44.	28 Aug 2023	JNL memorandum for CMC	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
45.	29 Aug 2023	Conference	13 Appearance at first or subsequent case management conference	B	0.4	$1,412
46.	15 Sep 2023	JNL notice challenging admissibility of additional brief (step not listed in Sch 3, 18 used as comparator) No longer claimed	18* Notice to admit facts	DISALLOWED
47.	30 Oct 2023	Joint memorandum seeking amendments to timetable following High Court judgment on 7ASOC, Supreme Court judgment refusing leave and filing of 8ASOC	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
(Step not listed in Sch 3, 11 used as comparator)
STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
48.	3 Nov 2023	Defence to 8ASOC	9 Pleading in response to amended pleading (payable regardless of outcome except when formal or consented to)	B	0.6	$2,118
49.	14 Dec 2023	JNL memorandum responding to issues raised by Red Stag with respect to briefs, discovery, the pleadings, an alleged admission by counsel, the pre-trial timetable and a proposed adjournment of the start of trial (Step not listed in Sch 3, 10 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
50.	15 Dec 2023	Joint memorandum regarding timetable (Step not listed in Sch 3, 10 used as comparator)	11* Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412
51.	24 Jan 2024	JNL memorandum for pre- trial conference	11 Filing memorandum for first or subsequent case management conference or mentions hearing	B	0.4	$1,412

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3 (items marked * are HCR 36, comparative item given)	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
52.	26 Jan 2024	Pre-trial conference	15 Preparation for and appearance at pre-trial conference	B	0.5	$1,765
53.	25 Jan 2024	Red Stag supplementary discovery (quantum)	21 Inspection of documents	B	1.5	$5,295
54.	9 Feb 2024	JNL supplementary discovery (third parties)	20 List of documents on discovery	B	2.5	$8,825
55.	Briefing, lists of issues and authorities, common bundle	33 Preparation of briefs, list of issues, authorities, and agreeing common bundle	36	$76,777.50
56.	Trial preparation	33B Preparation for hearing	36	$76,777.50
57.	12 Feb – 19 Mar 2024	Attendances during trial (first counsel). Includes written opening and closing submissions.	34 Appearance at trial for sole or principal counsel	18	$63,540
58.	12 Feb – 19 Mar 2024	Attendances during trial (second counsel). Includes written opening and closing submissions.	35 Second and subsequent counsel if allowed by court	9	$31,770
$423,953

Steps at Category 2 daily rate: $2,390

STEP IN PROCEEDING		RULES ALLOWANCE – SCH.3	APPROVED COSTS
No.	Date	Actual step	HCR Item	Band	Time (days)	Amount (x $3,530)
59.	7 Nov 2023	Opposition to Red Stag’s application requiring JNL to answer interrogatories	23 Filing opposition to interlocutory application	B	0.6	$1,434
60.	7 May 2024	JNL’s application to notify Court of new legal authority	22 Filing interlocutory application	B	0.6	$1,434
61.	DELETED
2.7	$6,453

Total costs claimed for steps in proceeding

JNL claim
Category 3 steps	$423,953
Category 2 steps	$6,453
$430,406

SCHEDULE 2

JNL DISBURSEMENTS

WITNESS COSTS
No.	Date	Description	Amount ($)	Total
Paul Jordan (evidence 27 Feb 2024)
1.	24 & 28 Feb 2024	Return flights from Palmerston North to Auckland for trial	381.31
2.	28 Feb 2024	Return flight adjustment	149.13
3.	24 – 28 Feb 2024	Hotel	881.63	1,412.07
Brendan Smith (evidence 28 Feb 2024)
4.	26 Feb & 1 Mar 2024	Return flights from Gisborne to Auckland for trial	570.72
5.	28 Feb 2024	Return flight adjustment	89.25
6.	26 Feb – 1 Mar 2024	Hotel	721.39
7.	26 Feb – 1 Mar 2024	Hotel	10.00	1,391.36
Gordon Wilmshurst (evidence 5 March 2024)
8.	3 & 8 Mar 2024	Return flights from Palmerston North to Auckland	519.59
9.	3 – 6 Mar 2024	Hotel (final night not claimed)	404.35	923.94

Michael Powell – Biotica (evidence 5 March 2024)
10.	14 Mar 2024	Prepare brief of evidence, review reply, court attendance (ex Queensland)	24,075.00	$24,075.00
Dr Tripti Singh – Scion (evidence 5 March 2024)
11.	19 Mar 2024	Prepare brief of evidence, court appearance	10,000.00
12.	19 Mar 2024	Review draft brief from Jeanette Drysdale re Veritec raw data for Scion interlaboratory report, letter in response (refer judgment [240] – [243])	6,000.00	16,000.00
Kevin Hing – NZTIF (evidence 6 March 2024)
13.	14 Mar 2024	Travel and accommodation costs	635.00	635.00
Simon Dorries (evidence 6 March 2024)
14.	4 & 7 Mar 2024	Return flights from Brisbane	761.50
15.	4 – 7 Mar 2024	Accommodation (GST excl.)	983.47	1,744.97
Dr Harry Greaves (evidence 6 March 2024) (invoices rendered in AUD, converted to NZD for payment as below)
16.	3 Mar 2023	Review documents and prepare brief of evidence	6,789.58	)
17.	28 Jul 2023	Review Red Stag briefs	3,788.35	)    $36,960.30
18.	30 Nov 2023	Review documents and prepare brief of evidence	2,903.13	)    less 20%
19.	2 Feb 2024	Review reply briefs, trial preparation	7,498.51	) = $29,568.24
20.	12 Mar 2024	Trial preparation, court attendance	15,980.73	)     allowed
21.	12 Mar 2024	Travel and accommodation costs (ex Melbourne)	$7,312.00	Allowed $52,860.97
John Gardiner (evidence 8 March 2024)
22.	4 Dec 2023	Review documents and prepare brief of evidence	8,280.00
23.	13 Mar 2024	Review reply briefs, trial preparation, court attendance and disbursements	9,788.70	$18,068.70

Customers (evidence 11 March 2024)
24.	10-12 Mar 2024	Paul Robertson – travel costs (ex Cromwell) (witness flight only)	1,756.89
25.	11-12 Mar 2024	Dave Buckthought – travel costs (ex Palmerston North)	654.31
26.	11-12 Mar 2024	Dave Buckthought – travel to/from airport (183km @95c Masterton-Palmerston North)	173.85	$2,585.05
Paul McCreedy – Forme (evidence 11 March 2024)
27.	1 Mar 2023	Initial instructions and document review	1,400.00
28.	7 April 2023	Document review	3,400.00
29.	2 May 2023	Document review	400.00
30.	7 Sep 2023	Review Red Stag briefs and documents	5,900.00
31.	1 Oct 2023	Review Red Stag briefs and documents	6,187.50
32.	1 Nov 2023	Prepare brief	10,462.50
33.	1 Dec 2023	Prepare brief	4,500.00
34.	19 Dec 2023	Prepare brief	6,000.00
35.	30 Jan 2024	Review reply briefs	1,750.00
36.	28 Feb 2024	Document review, trial preparation (Auckland)	8,605.34
37.	12 Mar 2024	Document review, supplementary brief of evidence, court attendance (Auckland)	11,861.81	$60,467.15
Shaun Hayward – Calibre Partners (evidence 11 March 2024)
38.	4 Aug 2023	Review documents and briefs, invoice reduced to exclude matters relating to discovery	11,587.50	less 10% = $10,428.75
39.	1 Dec 2023	Review documents and briefs	9,803.00
40.	2 Feb 2024	Prepare brief of evidence, trial preparation	52,172.08
41.	19 Mar 2024	Review reply briefs, updated evidence, trial preparation, court attendance	31,821.85	$104,225.68

Dr Geoff Edwards – Charles River Associates (evidence 12 March 2024)
42.	25 Sep 2023	Review documents and Red Stag’s briefs, preliminary analysis	81,350.00	)
43.	24 Nov 2023	Prepare brief of evidence and damages model, review supplementary briefs	85,800.00	) 499.300
44.	11 Dec 2023	Prepare brief of evidence and damages model, review supplementary briefs	158,300.00	) less 25%
45.	10 Jan 2024	Prepare brief of evidence and damages model	87,400.00	) = $374,475
46.	1 Mar 2024	Review reply briefs, review damages model	86,450.00	)
47.	18 Mar 2024	Consider hot tub proposal, reply evidence, prepare supplementary evidence, trial preparation, court attendance, travel and hotel (ex Sydney) [two trips, one claimed]	130,000.00	$504,475
TOTAL WITNESS COSTS			$788,864.89

SCION AND BIOTICA TRIALS
No.	Date	Description	Amount ($)	Total
Scion trial reports
48.	14 Feb 2024	Assessment, analysis and reports 2023 on 1st and 2nd trials (7 and 8 year reports)	18,300.00	18,300.00
Biotica trial
49.	12 Jul 2023	Samples purchased – Bunnings	180.72
50.	12 Jul 2023	Samples purchased – Tumu	162.81
51.	12 Jul 2023	Samples purchased – Mitre 10 (ex. GST)	157.43
52.	28 Jul 2023	Send samples to Biotica (Australia)	1,725.54
53.	26 Aug 2023	Trial set up, sampling, processing (weeks 1-3)	28,375.00
54.	30 Nov 2023	Test samples – IVS	8,699.98
55.	1 Dec 2023	Trial sampling and processing (weeks 6-12), sample processing, testing, cutting determination (weeks 0-12), data processing and report	31,945.00
56.	14 Mar 2024	Final report	5,250.00	76,496.48
Total third party Scion and Biotica trial costs	$94,796.448

OTHER COSTS
No.	Date	Description	Amount ($)	Total
Council search fee (Red Stag reply briefs)
57.	26 Feb 2024	Property file (Auckland Council) – 3 Helvetia Road, Pukekohe	94.78	94.78
E-discovery (LawFlow)
58.	Aug 18-Apr 24	Discovery hosting	5,178.06	5,178.06
Court filing fees
59.	22 Dec 2017	Statement of defence	95.65
60.	10 May 2019	Defence to first amended statement of claim	95.65
61.	26 Jun 2020	Defence to third amended statement of claim	95.65
62.	11 Nov 2020	Defence to fourth amended statement of claim	95.65
63.	3 Nov 2023	Defence to eighth amended statement of claim	95.65
64.	7 Nov 2023	Notice of opposition to application to answer interrogatories	95.65
65.	7 May 2024	Application to notify Court of new legal authority	434.78	1,008.68
Total other costs				$6,281.52

TOTAL DISBURSEMENT COSTS
Total witness costs	788,864.89
Total Scion and Biotica trial costs	94,796.48
Total other costs	6,281.52
Total disbursement costs (ex GST)	$889,942.89