Ruby & Rata Limited v Reed Trustee 2018 Limited - [2024] NZHC 33

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-724

[2024] NZHC 33

UNDER Section 313 Property Law Act 2007

BETWEEN

RUBY & RATA LIMITED

Plaintiff

AND

REED TRUSTEE 2018 LIMITED and

ANTHONY PRIVETT REED (as trustees of the Eagle Trust)

Defendants

Hearing: On the papers

Counsel:

R O Parmenter for Plaintiff

J W Maassen and B D Mead for Defendants

Judgment:

30 January 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 30 January 2024 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Graham & Co, Auckland Langford Law, Wellington
R O Parmenter, Barrister, Auckland J W Maassen, Barrister, Wellington

RUBY & RATA LIMITED v REED TRUSTEE 2018 LIMITED [2024] NZHC 33 [30 January 2024]

[1] In a judgment dated 30 November 2023, I made declarations in favour of the plaintiff, and recorded that the plaintiff’s claim had succeeded. I said that costs follow the event and set a timetable for the parties to file memoranda for the question of costs and disbursements to be determined on the papers.

[2]The plaintiff seeks costs on a 2B basis in the following amounts:

(a)For steps in the proceeding calculated based on the time allocations set out in sch 3 of the High Court Rules 2016, $38,957.

(b)For various disbursements including court filing fees, discovery, copying and bundle preparation and expert witness fees, $15,028.32.

[3] The defendants accept that the plaintiff, as the successful party, is entitled to costs on a 2B basis. However, the following issues are disputed:

(a)The defendants contend that costs should be reduced by two thirds to reflect the plaintiff’s conduct in the proceeding, including allegations of ulterior motives and/or unclear expressions of the purpose of access sought, failure to adduce evidence, and because I did not grant the wider declaration in the prayer for relief.

(b)In respect of the digital discovery bill of $403.66, the defendants say this should be reduced because the files were poorly named and organised, and because production did not comply with the High Court Rules.

(c)The defendants say that the evidence of Mr Bosgra as an expert was not relevant to the proceedings and did not form part of the findings upon which the judgment was issued.

(d)They seek to exclude bundle costs because they say that it was the defendants’ bundle that was relied on by the Court and witnesses, and the need for duplicate bundles was the plaintiff’s fault.

[4] I do not accept that there are any grounds for reducing the plaintiff’s entitlements from the default 2B allocations as the successful party. This reflects the fundamental principle applying to the determination of costs in New Zealand that costs follow the event.1 An assessment of which party was “successful” requires both a consideration of which party won the principal contests of law and fact and a realistic appraisal of the end result, rather than focusing on who initiated what step and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 33
Decision Date: 30 January 2024

CaseChat Overview and Summary

In Ruby & Rata Limited v Reed Trustee 2018 Limited, the plaintiff sought costs on a standard basis following a successful judgment in their favour. The defendants contested the plaintiff's claim for costs, arguing that certain expenses should be reduced or excluded. They contended that the plaintiff's conduct during the proceedings warranted a reduction, and that specific disbursements were not properly incurred. The court considered the defendants' arguments but found no valid grounds for reducing the plaintiff's costs, which follow the event as the successful party.

The court addressed several specific points raised by the defendants. It rejected the argument for a two-thirds reduction in costs, stating that the defendants' strategy contributed to the length of the hearing. The court also found that the plaintiff's bundles were properly filed and served, and thus the costs for bundle preparation were properly claimed. Additionally, the court ruled that the disbursements for expert witness fees were relevant and reasonably necessary, even though the evidence was not ultimately relied upon. However, the court noted that GST components should not be included in the disbursements, as the plaintiff should have obtained an input credit.

The court awarded costs on a standard basis, confirming the plaintiff's entitlement to the full amounts claimed for procedural steps and disbursements, less the GST components. The final order was for the plaintiff to receive $38,957 for steps in the proceeding and $14,114.18 for disbursements, minus the GST components. The court left open the possibility that if the plaintiff was not GST-registered, then GST could be added back upon establishing those facts with the Registrar.

Orders