IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-58
[2025] NZHC 3073
UNDER the Trade Marks Act 2002 and the Fair Trading Act 1986 IN THE MATTER
of breach of confidence
BETWEEN
DAVID IAN RUSCOE and
MALCOLM RUSSELL MOORE of
Grant Thornton New Zealand Limited as liquidators of Cryptopia Limited (in liquidation)
First Plaintiffs
CRYPTOPIA LIMITED (in liquidation) Second Plaintiff
AND
EPIC TRUST LIMITED
First Defendant
THOMAS VICTOR HENRY RONALD CATTERMOLE
Second Defendant
MARTIN BRAINE
Third Defendant
PERSONS UNKNOWN
Fourth Defendant
Hearing: On the papers Appearances:
S Barker, J McGrath and B Marriner for Plaintiffs Second Defendant In Person
Judgment:
16 October 2025
RUSCOE v EPIC TRUST LIMITED [2025] NZHC 3073 [16 October 2025]
JUDGMENT OF ASSOCIATE JUDGE SKELTON
[Costs]
[1] In my judgment dated 1 August 2025 (Judgment),1 I determined by way of summary judgment that the plaintiffs were entitled to permanent injunctions against all the defendants in respect of two of the three causes of action in their statement of claim. I also dismissed the second defendant’s interlocutory application for appointment of counsel assisting and an independent expert.
[2] At [120] of the Judgment, I expressed my preliminary view that the plaintiffs are entitled to one set of costs on a 2B basis, and with reasonable disbursements, for the summary judgment application and the second defendant’s application for appointment of counsel assisting. I directed that the parties should endeavour to agree costs.
[3]The parties have been unable to resolve costs.
[4] The plaintiffs now seek costs for all stages of this proceeding on a 2B basis, only against the second defendant. They also seek increased costs (an uplift of 50 per cent) because of the second defendant’s conduct in the proceeding.
[5] The second defendant is the only defendant to respond. He contends that no costs award should be made against him at this stage. He says that if any costs award is made it should be:
(a)confined to the plaintiffs’ application for summary judgment and his application for appointment of counsel assisting;
(b)on a 1B basis;
(c)reduced because the plaintiffs abandoned their cause of action under the Trademarks Act 2002; and
(d)apportioned between all the defendants.
Legal principles — costs
[6] Costs are ultimately a matter of the court’s discretion, the overall objective being to achieve an outcome that best meets the interests of justice.2 However, that discretion is qualified by the applicable costs rules, contained in pt 14 of the High Court Rules 2016 (the Rules). The primary principle applying to the determination of costs is that costs follow the event, meaning that a party who is unsuccessful pays costs to a party who is successful.3 Costs are usually assessed against sch 2 and 3 of the Rules by applying the appropriate daily recovery rate to the time considered reasonable for each reasonably required step in relation to the proceeding or interlocutory application.4
[7] Rule 14.7…
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- AGLC
- Ruscoe v Epic Trust Limited [2025] NZHC 3073
- Case
- [2025] NZHC 3073
- Decision Date
CaseChat Overview and Summary
The court considered the appropriate scope of the costs award, deciding that the plaintiffs were entitled to costs for the entire proceeding, including the earlier interlocutory applications. The court rejected the second defendant's argument for a lower cost categorisation, noting the proceeding's complexity and the need to address costs for all interlocutory applications. Regarding the calculation of costs, the court found the plaintiffs' figures to be reasonable and in line with the High Court Rules. The court also determined a reduction in costs was warranted due to the plaintiffs not pursuing one of their causes of action but found no basis to further reduce costs for lack of settlement engagement. The court awarded an uplift of 40 per cent due to the defendants' non-compliance with interim and interlocutory injunctions, which necessitated the plaintiffs' return to court for permanent injunctions. Finally, the court ruled that costs should be awarded against all defendants jointly and severally, rejecting the argument that costs should only be awarded against the second defendant.
In conclusion, the court ordered the defendants to pay the plaintiffs costs in the sum of $54,339.04 and disbursements in the sum of $5,046.10. The defendants were held jointly and severally liable for these costs and disbursements.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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