Specialised Structures New Zealand Limited v Findlater Construction Limited

[2016] NZHC 1752

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2016-406-000011 [2016] NZHC 1752

BETWEEN

SPECIALISED STRUCTURES NEW

ZEALAND LIMITED Plaintiff

AND

FINDLATER CONSTRUCTION LIMITED

First Defendant

AND

RONALD STEVELY FINDLATER Second Defendant

Hearing:	29 July 2016 (On the papers)
Appearances:	P B Churchman QC and C M Kenworthy for Plaintiff T Sissons and S F Gaines for Defendants
Judgment:	29 July 2016

JUDGMENT OF DUNNINGHAM J RE:  COSTS DECISION

[1]      On 21 June 2016, I issued a decision granting, with some modifications, the plaintiff’s application for an interim injunction.  At the conclusion of the decision I reserved costs, but signalled that the matter appeared to warrant an award of costs on a 2B basis.  I reserved leave to file memoranda on costs if they could not be agreed.

[2]      The plaintiff has filed a memorandum seeking costs on a 2B basis which, on the plaintiff’s calculations, as set out in an annexure to the plaintiff’s submissions, total  $14,829.50,  plus  $3,300  in  disbursements.    These  costs  are  calculated  as

follows:

SPECIALISED STRUCTURES NEW ZEALAND LIMITED v FINDLATER CONSTRUCTION LIMITED [2016] NZHC 1752 [29 July 2016]

Step in the Proceedings	B category time allocation
Commencement of proceedings	3.0
Filing of interlocutory application	0.6
Preparation of written submissions	1.5
Preparation by applicant of bundle for hearing	0.6
Appearance by counsel	0.5
Appearance by second counsel	0.25
Sealing of order	0.2
Total	6.65

6.65 hours at a daily recovery rate of $2,230 per day  $14,829.50

Disbursements:

Filing Fees	1,550.00
Hearing Fee	1,600.00
Sealing Fee	50.00
Copying & Binding Fees	100.00
Total	$18,129.50

[3]      The only disputed issues relate to the claim for a three day time allocation for commencement of the proceeding, and to the claim for the appearance by second counsel.

Claim for costs in relation to commencement of proceeding

[4]      The defendants say that  the costs should only relate to  the interlocutory application, not to the substantive proceeding.  Therefore the claim of three days for commencement of the proceeding should only be payable if the plaintiff succeeds on the substantive proceeding.  For this reason, the three days should be deducted from the time calculation, so reducing the claim costs by $6,690.

[5]      I accept that costs were only awarded on the interlocutory application for an interim injunction.  It is not appropriate that costs are claimed, at this stage, for the filing of the statement of claim in the substantive proceeding.   Consequently, the claim for this step is not allowed.

Claim for second counsel

[6]      The plaintiff also claims a quarter day for the appearance by second counsel, saying that the complexity of the matter warranted two counsel as evidenced by the fact that the defendants’ counsel was accompanied by his instructing solicitor as second counsel.

[7]      The defendants resist that, saying that the application was not complex and had been properly categorised as being of average complexity.   It was also not accepted that the presence of the defendants’ instructing solicitor to  accompany counsel was evidence that the matter was of sufficient complexity to warrant second counsel.   For that reason, the claim for costs related to second counsel should be disallowed.

[8]      In my view, this issue is finely balanced.  I do not accept that, simply because the proceedings are categorised as 2B and therefore of average complexity, there should be no allowance for second counsel.  However, I consider there is some onus on the party applying for costs to demonstrate why the presence of second counsel was warranted in the circumstances.  By way of example, it could be because that person had the carriage of some of the arguments, where a range of issues were covered,  or  because  there  was  a  significant  burden  of  document  management involved in the hearing and where responsibility for that had been appropriately delegated to second counsel.

[9]      In the present circumstances, the matters were of moderate complexity and may  have  warranted  second  counsel,  but  in  the  absence  of  any  information  to support that, I decline to award costs for second counsel.

[10]     Accordingly, I consider a costs award of $10,882 is appropriate.   That is calculated by deducting the time allocation for the two disputed claims of 3.25 days

from the claimed allocation of 6.65 days, to make a total of 3.4 days at $2,230 per day.  That claim totals $7,582, and adding the claimed disbursements of $3,300 in respect of which no issue was taken.

[11]   Accordingly, the defendants are ordered to pay the plaintiff costs and disbursements in the sum of $10,882.

Solicitors:

Checketts McKay Law Limited, Alexandra

Lundons Law, Blenheim