Red Stag Timber Limited v Juken New Zealand Limited

[2021] NZHC 3584

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2753

[2021] NZHC 3584

BETWEEN

RED STAG TIMBER LIMITED

Plaintiff

AND

JUKEN NEW ZEALAND LIMITED

Defendant

Hearing:	On the papers
Appearances:	N F Flanagan and C M Fleming for the Plaintiff C L Bryant and G J Luen for the Defendant
Judgment:	21 December 2021

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 21 December 2021 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors/ Counsel:

Mr N F Flanagan and Ms C M Fleming, Meredith Connell, Auckland

Mr A R Galbraith QC (defendant’s instructed counsel), Barrister, Auckland Ms C L Bryant and Ms G J Luen, Hesketh Henry, Auckland

RED STAG TIMBER LTD v JUKEN NEW ZEALAND LTD [2021] NZHC 3584 [21 December 2021]

[1]    Following my judgment on various interlocutory applications dated 6 October 2021,1 the parties have been unable to reach agreement on costs. Red Stag Timber Ltd (Red Stag) seeks 2B costs on the applications by Juken New Zealand Ltd (JNL) for strike out and summary judgment, and on Red Stag’s discovery application, reduced by the amount  of costs  on Red Stag’s  application for a more explicit pleading.     To allow for JNL’s success, Red Stag claims for only one interlocutory application and one opposition, and 85 per cent of the hearing and preparation costs, which it says is the amount of hearing and preparation time spent on JNL’s applications, resulting in costs totalling $16,479.60.

[2]JNL submits that costs should lie where they fall.

Discussion

[3]    My judgment stated that each party had some success.2 JNL applied for strike out, leave to bring summary judgment and summary judgment (in an omnibus application dated 4 December 2020). Leave to seek summary judgment was granted, but the substantive applications were dismissed.

[4]    Red Stag applied for orders for particular discovery (dated 21 October 2020) and for a more explicit pleading (dated 23 December 2020). There was mixed success on the discovery application. Red Stag’s application for a more explicit pleading was dismissed.

[5]    Dealing first with strike out, Red Stag said that JNL required leave.   While    I decided otherwise, I do not treat this as a separate unsuccessful application. At most, it was an unnecessary distraction from the substance of the strike out application.  But I do not consider it warrants a reduction in scale costs on the strike out application.

[6]    As for the summary judgment application, Red Stag accepts that JNL had some success in that leave to apply for summary judgment was granted. This warrants a modest reduction of 10 per cent.

1      Red Stag Timber Ltd v Juken New Zealand Ltd [2021] NZHC 2662.

2 At [125].

[7]    Turning to Red Stag’s application for a more explicit pleading, JNL is entitled to costs.

[8]    In relation to Red Stag’s discovery application, the parties characterise the outcome differently. Red Stag submits I largely granted the application finding that eight out of ten categories of documents  were  discoverable,  whereas  JNL  says Red Stag was largely unsuccessful, noting JNL had always acknowledged it would need to undertake further discovery if it did not succeed in striking out the new pleading and referring to my statement that, but for the need to carry out further discovery to address the more recent pleading since the strike out application had not succeeded, I would have declined to order a further affidavit of documents.3

[9]    Red Stag succeeded in that I concluded that some (but not all) categories of documents (at least in part) were relevant, and a further affidavit was appropriate given the need to update the discovery in light of the amended pleading. But as well as not succeeding in relation to relevance on some grounds, Red Stag did not succeed in having JNL’s claims for confidentiality and privilege set aside as sought, albeit with leave reserved in limited respects. I consider the mixed success is such that Red Stag is entitled to reduced costs of 50 per cent on the discovery application.

[10]   It makes practical sense to treat the strike out and summary judgment applications as two separate applications for the purposes of the allowance for filing opposition even though the opposition was in a single document, and to offset JNL’s successful opposition to the pleading application. Together with the 50 per cent allowance for the discovery application and the 10 per cent reduction on the summary judgment application, Red Stag is entitled to 0.84 days.4 I consider the same approach should be adopted for submissions, that is Red Stag is entitled to 2.1 days,5 plus

0.3 days (50 per cent) for preparation of the bundle. At the appropriate 2B category, this totals 3.24 days x $2,390 = $7,743.60.

3      Red Stag Timber Ltd v Juken New Zealand Ltd [2021] NZHC 2662 at [112].

4      0.6 – 0.06 + 0.3 days.

5      1.5 – 0.15 + 0.75 days.

[11]   In relation to hearing time, apportionment is appropriate. However, 85 per cent is more than the amount of hearing time spent on JNL’s applications. JNL’s applications were addressed on the first day of the hearing and Red Stag’s on the second (albeit shorter) day. Allowing for overlap, I treat the hearing time occupied as:

(a)summary judgment     0.5 days

(b)strike out  0.5 days

(c)discovery  0.5 days (x 50 per cent)

(d)pleading (offset)         0.25 days

[12]   Therefore, Red Stag is entitled to one day for appearance plus 0.5 days for second counsel,6 totalling 1.5 days x $2,390 = $3,585.

[13]In aggregate, Red Stag is entitled to costs of $11,328.60.

[14]   I allow disbursements as claimed but offset the filing fee for JNL’s notice of opposition on the pleading application.

Result

[15]Red Stag is entitled to costs of $11,328.60 plus disbursements of $500, totalling

$11,828.60.

Gault J

6      Items 26 and 27.