Ruscoe v Epic Trust Limited

[2025] NZHC 3073

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

1      Ruscoe v Epic Trust Ltd [2025] NZHC 2138.

(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…