Skycity Entertainment Group Limited v MPF Parking NZ Limited

[2023] NZHC 2116

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-624

[2023] NZHC 2116

UNDER

the Declaratory Judgments Act 1908 and Part 18 of the High Court Rules

IN THE MATTER OF

the interpretation of a Concession Agreement

BETWEEN

SKYCITY ENTERTAINMENT GROUP LIMITED

First Plaintiff

SKYCITY AUCKLAND LIMITED
Second Plaintiff

AND

MPF PARKING NZ LIMITED

Defendant

Hearing:	On the papers
Counsel:	D J Cooper KC, H McQueen and D Scholes for Plaintiffs J Cooper KC, T J Lindsay and S McNae for Defendant
Judgment:	9 August 2023

JUDGMENT OF LANG J

[Costs]

This judgment was delivered by Justice Lang On 9 August 2023 at 2.30 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Gilbert Walker/D Cooper KC, Auckland

Lindsay & Francis/J Cooper KC, Auckland

SKYCITY ENTERTAINMENT GROUP LTD v MPF PARKING NZ LTD [2023] NZHC 2116 [9 August 2023]

[1]        On 12 July 2023, I delivered a judgment in which I determined three interlocutory applications in this proceeding.1

[2]        The parties have been unable to reach agreement regarding the issue of costs. I am therefore required to determine costs having regard to the issues counsel have raised in their respective memoranda.

The applications

[3]        The plaintiffs, SkyCity Entertainment Group and SkyCity Auckland Ltd (together, SkyCity), sought a variety of procedural directions. These included directions that evidence be given by affidavit, that they be permitted to file reply evidence if necessary and that there be no cross-examination at trial.

[4]        The defendant, MPF Parking NZ Ltd (MPF), sought orders requiring SkyCity to provide particular discovery of several categories of documents in its possession. It also sought directions that the Part 18 procedure be modified in several respects. In particular, MPF sought an order that evidence be given orally in the usual way.

[5]        I granted SkyCity’s application for directions but delayed the commencement date of the trial to give MPF an opportunity to file and serve its evidence.2 I dismissed both of MPF’s applications.3

Costs categorisation

[6]        Counsel for SkyCity contends that the proceeding should be categorised as a category 3 proceeding for costs purposes given the sum involved and the likely complexity of the issues that will be raised at trial. Counsel for MPF contends that category 2 is appropriate.

[7]        The amount at stake is undoubtedly very large. However, if SkyCity’s submissions to date are correct, the trial will involve a relatively narrow issue of contractual interpretation. This means the proceeding appears to be of average

1      SkyCity Entertainment Group Ltd v MPF Parking (NZ) Ltd [2023] NZHC 1818.

2      At [24]-[26].

3      At [18] and [23].

complexity and will require counsel having average skill or experience in the High Court. As a result, category 2 appears to be appropriate at this stage.4 The fact that both parties have retained senior counsel is understandable given the sum at stake but this does not alter the assessment to be made under r 14.3(1) of the High Court Rules 2016. I acknowledge, however, that the position may be different at trial depending on the complexity of the issues then raised.

[8]        For present purposes costs are therefore to be calculated on a category 2 band B basis.

Deferral of determination of costs

[9]        I do not accept MPF’s submission that determination of costs at this stage is premature. All three applications have now been finally determined and, so far as possible, the determination of costs should be both predictable and expeditious.5 It is neither necessary nor desirable to defer determination of costs on the applications until after trial or until it is known whether SkyCity will file reply evidence and/or whether cross-examination of witnesses will be required at trial.

Successful party

[10]      I take the view that Skycity was wholly successful because it obtained the pre- trial directions that it sought (other than retention of the existing trial date) and successfully opposed the two applications filed by MPF.

[11]      I do not consider any reduction in costs is required to effect any partial success MPF may have achieved. SkyCity is accordingly entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.

4      High Court Rules 2016, r 14.3(1).

5      Rule 14.2(1)(g).

Costs payable for specific items

Notice of Opposition filed by SkyCity

[12]      SkyCity filed a single notice of opposition to the two interlocutory applications advanced by MPF. Notwithstanding this fact, I consider it should be entitled to costs for filing two notices of opposition. SkyCity would have been entitled to separate the notices of opposition into two separate documents. It should not be penalised for combining its notice of opposition into a single document.

Preparation of submissions

[13]      SkyCity seeks costs for preparing three sets of written submissions even though it combined its submissions opposing MPF’s applications in a single document. I accept that costs should be payable on this basis. MPF could not have opposed separate awards of costs being made if SkyCity had filed a separate set of submissions in opposition to each application.

Costs for preparing costs memorandum

[14]      The Court does not customarily award costs in relation to memoranda filed on the issue of costs although it is not precluded from doing so in appropriate cases. SkyCity contends that MPF’s unreasonable approach to the issue of costs categorisation justifies an award of costs for the costs memorandum it was obliged to file. However, I have found in favour of MPF on that issue.

[15]      Costs will therefore not be payable for the preparation of the memorandum on costs.

Lang J