Sudan v West
[2025] NZHC 984
•29 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000953
[2025] NZHC 984
UNDER the Companies Act 1993 BETWEEN
SUNNY SUDAN
Plaintiff
AND
ANNETTE WEST
First Defendant
360FIXIT LIMITED
Second DefendantWEST FACILITY MANAGEMENT LIMITED
Third Defendant
Hearing: On the papers Appearances:
P Rice for the Plaintiff
T Ashley for the First Defendant
Judgment:
29 April 2025
COSTS JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 29 April 2025 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Gaze Burt, Auckland
B Parshotam, Auckland
P Rice, Auckland S Wroe, Auckland
SUDAN v WEST [2025] NZHC 984 [29 April 2025]
Introduction
[1]On 12 March 2025 the Court determined two applications:
(a)the first defendant’s application for particular discovery against the plaintiff and that the plaintiff clarify the steps he took to discharge his discovery obligations; and
(b)an application by the plaintiff challenging the first defendant’s claim to confidentiality of two categories of documents disclosed in her list of documents.
Particular discovery application and its result
[2] The Court considered that the particular discovery application was best dealt with by considering the documents in two categories, being Category A and Category B documents.
[3] The first defendant was unsuccessful in her application for Category A documents, other than in relation to disclosure of ‘WhatsApp’ messages between the plaintiff and staff / contractors / franchisees of 360Fixit Limited (360Fixit).
[4] The first defendant was unsuccessful in her application for particular discovery of Category B documents.
[5] The first defendant was unsuccessful in her application that the plaintiff clarify the steps he took to comply with his discovery obligations.
Application to set aside confidentiality claim and its result
[6] The plaintiff applied to have the first defendant’s claim to confidentiality in her discovery affidavit set aside.
[7] There were two categories of documents in relation to which the first defendant had claimed confidentiality:
(a)job sheets for 360Fixit and the third defendant, West Facility Management Limited; and
(b)the first defendant’s personal bank statements
[8] That application was granted, with the Court ordering the plaintiff to provide a confidentiality undertaking in order to access the first defendant’s personal bank statements.
Costs application
[9]The parties have been unable to agree on costs.
[10] The starting point on costs is that generally in relation to the determination of costs:
(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds;
(b)an award of costs should reflect the complexity and significance of the proceeding;
(c)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required, in relation to the proceeding or interlocutory application;
(d)an award of costs should not exceed the costs incurred by the party claiming the costs, and
(e)so far as possible, the determination of costs should be predictable and expeditious.
[11] At the end of the day, the determination of costs is an exercise of the Court’s discretion. That said, the discretion is not unfettered and has to be exercised judicially.
The plaintiff’s position on costs
[12] The plaintiff says that with the limited exception of the requirement to disclosure the WhatsApp exchanges which he says are not relevant, the plaintiff was successful in his opposition to the defendant’s application for particular discovery and was successful in his application to set aside the first defendant’s claim to confidentiality.
[13] The plaintiff submits that costs category 2B is appropriate for the determination of the two applications before the Court. He has filed a Schedule setting out his claims to costs, on costs category 2B.
[14] The plaintiff says that he should be entitled to claim item 25 – preparation of bundle for hearing – as he is entitled to the costs of preparing that bundle, notwithstanding that the printing of the bundle was arranged by the defendant’s counsel. I address that further below.
The first defendant’s position
[15] The defendant’s position is that costs should either lie where they fall or be awarded to both parties to reflect the partial success they both achieved on the applications.
[16] On the issue of particular discovery the first defendant submits that the WhatsApp exchanges were discoverable and should have been disclosed by the plaintiff at the outset, and so she achieved some level of success on her application in that regard.
[17] On the issue of the setting aside of the claim to confidentiality, the defendant notes that it was implicit in the Court’s order that there was a valid claim to confidentiality, and that confidentiality in her personal bank statements was protected by the requirement for an undertaking to be given by the plaintiff. The first defendant says she is in a better position having claimed confidentiality, than if she had simply disclosed the documents as “open” in her discovery list.
[18] The first defendant also submits that the Court should adopt a Band A costs category allocation in relation to the written submissions, to reflect that they were straightforward and involved the application of established legal principles.
[19] In relation to the bundle for hearing, the first defendant claims that it took a minimal amount of time to prepare the bundle index and that the bundle was actually prepared by the first defendant, not the plaintiff. A draft list of documents for inclusion in the bundle was prepared by the first defendant and provided to the plaintiff, who requested that the pleadings be included in the bundle, which was then completed by counsel for the first defendant.
[20] I agree that the plaintiff should not recover this cost item. It would significantly exceed the costs incurred by the party claiming the costs if that item was recoverable, in all the circumstances.
Discussion
[21] I consider that the order to discover the WhatsApp exchanges in relation to the first defendant’s application for particular discovery should not be considered success on the application.
[22] The particular discovery application sought a wide range of documents including financial records, records of work done by the plaintiff for other clients of 360Fixit, and correspondence to the plaintiff and staff and/or contractors, and/or franchisees of 360Fixit. That was a significantly broader range of documents than the very limited category of document upon which particular discovery was ultimately ordered.
[23] I do not consider that the first defendant was successful on her application for particular discovery. I make that comment being mindful of the Court having previously stated that “success on more limited terms is still success”.1
1 Weaver v Auckland Council [2017] NZCA 330 at [26].
[24] The position regarding the claim to set aside confidentiality is more difficult. While the Court did set aside the claim to confidentiality claimed for both categories of documents as set out in the first defendant’s discovery list, it nonetheless upheld or recognised the first defendant’s claim to some rights to privacy in relation to her personal bank statements by requiring an undertaking to be given by the plaintiff.
[25] The job sheets were clearly discoverable and were not confidential on any recognised basis.
[26] The personal bank statements contained private personal information and the plaintiff was required to give an undertaking before being able to access those documents. This acknowledged that the first defendant’s conduct in the factual background to the proceeding had made her own personal bank statements relevant and discoverable, but also acknowledging that those bank statements would contain private information.
[27] Hence, there was success on the application to set aside the claim for confidentiality, albeit that that success was tempered by the requirement to give an undertaking as to confidentiality in relation to one of the two categories of documents sought.
[28]I consider that costs category 2B applies to all steps in both applications.
[29] The plaintiff is entitled to seal the interlocutory order, so is entitled to costs on that step.
[30] Taken overall, I consider that the Court’s costs discretion is to be exercised as follows:
(a)on the particular discovery application, the plaintiff is entitled to 75 per cent of the costs incurred on a 2B basis, this to reflect the partial success of the first defendant in relation to the WhatsApp exchanges, but otherwise the plaintiff’s success in opposing the majority of the first defendant’s application;
(b)on the confidentiality challenge, the plaintiff is entitled to 75 per cent of the Scale 2B costs on that application, to reflect that he was successful in relation to the job sheets and successful in relation to access to the first defendant’s personal bank statements, albeit with a requirement to give an undertaking as to confidentiality.
[31] By reference to the schedule of plaintiff’s costs attached to the plaintiff’s submissions, I therefore grant:
(a)on the particular discovery application, 75 per cent of items 23, 24, 26 and 29 as claimed, being $4,570.50;
(b)on the application to challenge confidentiality, 75 per cent of items 22, 24 and 26 as claimed, but excluding item 25, being $4,212.00;
(c)disbursements in a total of $858.00.
Associate Judge Cogswell
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