Spark New Zealand Trading Limited v Spud Consulting Limited

[2020] NZHC 2294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2875

[2020] NZHC 2294

BETWEEN

SPARK NEW ZEALAND TRADING LIMITED
Applicant

AND

SPUD CONSULTING LIMITED

First Respondent

AND

MARK LESTER

Second Respondent

BETWEEN

CIV-2018-404-2876

SPARK NEW ZEALAND TRADING LIMITED

Applicant

AND

VICTORY I.T LIMITED (IN LIQUIDATION)

First Respondent

AND

SEAN DAVID BRYAN

Second Respondent

Hearing:

On the papers

Counsel:

Z G Kennedy and Y J Lee for the applicant S M Kilian for the 2875 parties

B M Stainton and L M Tawse for the 2876 parties

Date of judgment:

4 September 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 4 September 2020 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

SPARK NEW ZEALAND TRADING LTD v SPUD CONSULTING LTD – Costs [2020] NZHC 2294 [4

September 2020]

[1]                 My 6 August 2020 judgment in these proceedings ordered Spark was entitled to increased costs in each of these proceedings, for Spark’s subsequent quantification, while reserving leave for its continued pursuit of contempt and indemnity costs applications.1 Spark seeks that leave be extended until the end of this month.

Spud and Lester

[2]                 Spud resists Spark’s quantification of some of its steps as requiring a comparatively large amount of time, as having not discharged its onus to show such was reasonable, and ‘double-dipping’ by seeking to recover for common preparation for each proceeding, ultimately to deny any recovery at costs band C.

[3]                 The steps for which time is claimed at costs band C are for filing the initial application for enforcement of this Court’s discovery orders; the preparation of written submissions and initial bundle for hearing; and for filing an initial costs memorandum. Having seen each of those documents, in relation to each proceeding, I am satisfied each would have required a large amount of time, compared to that for a more run-of- the-mill interlocutory application. These are applications to enforce this Court’s previous orders, which carry with them heightened obligations to establish non- compliance, particularly in the face of the defendants’ “novel” dispute here.2 Common preparatory steps are split between each proceeding. I will order costs here as claimed.

[4]                 Spud remains in default on payment of Palmer J’s costs order of 5 August 2019. I will require its prompt payment.

Victory I.T and Bryan

[5]                 Victory I.T additionally argues, if it spent a comparatively large amount of time for a particular step, only a normal amount of time was reasonable for the majority of Spark’s steps, and thus its “progressive discovery” means “a much lower figure” of costs is appropriate against it.

1      Spark New Zealand Trading Limited v Spud Consulting Limited No 2 [2020] NZHC 1957 at [13] and n 10.

2      Spark New Zealand Trading Limited v Spud Consulting Limited [2020] NZHC 515 at [5].

[6]                 Even if the initial proposition had any more general foundation, as against clear orders for discovery, Victory I.T’s drip-fed response inevitably was to exacerbate rather than to diminish Spark’s effort in obtaining that to which it was entitled. I also will order costs here as claimed.

[7]Spark accepts its schedule of disbursements inadvertently transposed

$1,869.56 as $1,896.56. But its claim is for the former.

Result

[8]I order:

(a)the respondents in CIV-2018-404-2875 pay Spark:

(i)increased costs of $46,695.00 and disbursements of $1,869.56 within 14 working days of the date of this judgment; and

(ii)costs of $14,014.44 within two working days of the date of this judgment; and

(b)the respondents in CIV-2018-404-2876 pay Spark increased costs of

$43,110.00 and disbursements of $1,869.56 within 14 working days of the date of this judgment.

[9]                 I extend the leave reserved at footnote 10 of my 6 August 2020 judgment to 30 September 2020.

—Jagose J

Counsel/Solicitors:

Z G Kennedy Barrister, Auckland MinterEllisonRuddWatts, Auckland Kilian & Associates, Auckland Stainton Chellew, Auckland