Talley's Group Limited v Television New Zealand Limited
[2025] NZHC 2771
•23 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-002354
[2025] NZHC 2771
BETWEEN TALLEY’S GROUP LIMITED
First Plaintiff (discontinued)
TALLEY’S LIMITED
Second PlaintiffAFFCO HOLDINGS LIMITED
Third PlaintiffAFFCO NEW ZEALAND LIMITED
Fourth Plaintiff
SOUTH PACIFIC MEATS LIMITED
Fifth Plaintiff (discontinued)
AND
TELEVISION NEW ZEALAND LIMITED
First Defendant
THOMAS MEAD
Second Defendant
Hearing: On the papers Counsel:
B H Dickey, W R Potter and J L Gibson for Plaintiffs D M Salmon KC and E D Nilsson for Defendants
Judgment:
23 September 2025
JUDGMENT OF ANDREW J
[Costs]
This judgment was delivered by me
on 23 September 2025 at 3 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
TALLEY’S GROUP LTD v TELEVISION NEW ZEALAND LTD [2025] NZHC 2771 [23 September 2025]
Introduction
[1] The plaintiffs sue Television New Zealand Ltd (TVNZ) and Mr Thomas Mead (collectively, the defendants/TVNZ) in defamation. The trial of the substantive proceedings commenced before Jagose J on 15 September 2025.
[2] This judgment addresses the outstanding issues as to costs arising from the various interlocutory applications made by the parties in the pre-trial stage.1
Relevant legal principles
[3] The principles applicable to each of the costs disputes in this matter are simple and well settled. Rule 14.2(1)(a) of the High Court Rules 2016 provides that “the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds”. Success need not be absolute—partial success is still success.2 Where a party does not succeed in the entirety of their application, a costs award may still be available.
[4] Questions of costs are ultimately a matter of discretion, the overall objective being to achieve an outcome that best meets the interests of justice.3
Costs on strike-out application
[5] In her judgment of 31 March 2023, Associate Judge Gardiner (as she then was) substantially declined the plaintiffs’ application to strike out parts of the defendants’ amended statement of defence, but struck out the bad reputation pleading in reliance on specific instances of alleged misconduct.4 Her Honour substantially dismissed the defendants’ application for further and better particulars of the plaintiffs’ pecuniary loss.
1 High Court Rules 2016, r 14.8.
2 Weaver v Auckland Council [2017] NZCA 330 at [26]; and Minister of Education v James Hardie New Zealand [2018] NZHC 1732 at [28].
3 High Court Rules, r 14.1; and see Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR14.1.02].
4 Talley’s Group Ltd v TVNZ [2023] NZHC 696.
[6] On the strike-out application, the Judge considered that “The most appropriate outcome may be for costs to lie where they fall.”5 As to the application for further particulars, her Honour was of the preliminary view that the defendants should pay the plaintiffs’ costs on a 2B basis.6
[7] TVNZ appealed Associate Judge Gardiner’s judgment. The Court of Appeal reinstated the bad reputation pleading insofar as it related to the harm to reputation element of the defamation cause of action, determined that the third and fourth affirmative defences should remain struck out, and awarded costs on the appeal to the defendants.7
Submissions
[8] The defendants submit that, given the Court of Appeal’s judgment reinstated their bad reputation pleading, they were entirely successful in opposing the plaintiffs’ strike-out application. Mr Salmon KC, for the defendants, submits that, contrary to the plaintiffs’ position, the reinstatement of the pleading renders the defendants substantially successful in opposing the strike-out application. This, he says, is because the plaintiffs’ application for strike out was intended to prevent the defendants from pleading issues relating to the plaintiffs’ prior reputation and the Court of Appeal’s judgment meant the defendants could advance prior reputation pleadings— albeit not as the basis for an affirmative defence. As such, the defendants submit they substantially succeeded in opposing the strike-out application and seek costs and disbursements of $6,787.65.
[9] The plaintiffs say the Court of Appeal’s judgment did not render the defendants’ opposition to the strike-out application “entirely successful”. Mr Dickey, for the plaintiffs, says the Court of Appeal, like Associate Judge Gardiner, did not accept the defendants’ argument that the plaintiffs’ previous reputation was relevant to the discretion to issue a declaration or award indemnity costs. He further says that a defective pleading (and that is how the Court of Appeal’s characterisation of the bad reputation pleading should be interpreted) is relevant to the decision to award costs.
5 At [135].
6 At [136]. Costs were agreed between the parties in May 2023.
7 TVNZ v Talley’s Group Ltd [2024] NZCA 502 at [74]–[78].
Overall, the plaintiffs submit that costs should lie where they fall as, following the Court of Appeal’s decision, the “outcome in relation to the plaintiffs’ application to strike out” was still mixed.
A note on jurisdiction
[10] Although costs are usually determined at the time an application is determined,8 r 14.9 of the High Court Rules provides for costs to be determined by a Judge other than the one who heard the matter. It is convenient to determine all outstanding costs on the various interlocutory applications in one judgment and, there being no objection from the parties, it is appropriate for me to determine costs on the interlocutory applications determined by Associate Judge Gardiner.
Discussion on strike-out application
[11] While I acknowledge that TVNZ was not entirely successful in opposing the plaintiffs’ application for strike out, I am of the view that the defendants were substantially successful following the Court of Appeal’s reinstatement of the bad reputation pleading.9 The Court of Appeal’s finding in relation to the third and fourth affirmative defences does not alter that view. The plaintiffs’ “fundamental point” before the Court of Appeal was that TVNZ’s bad reputation pleading could not succeed on the facts. The Court did not accept that and, as such, I am satisfied that the defendants were substantially successful on appeal and, by extension, substantially successful in opposing the plaintiffs’ strike-out application.
[12]The costs sought by the defendants are as follows:
Cost item Allocation Amount 23. Filing notice of opposition 0.6 $1,434 24. Filing written submissions 1.5 $3,585 26. Appearance at hearing of defended hearing 0.5 $1,195 36. Filing amended notice of opposition 0.2 $478 Total $6,692
8 High Court Rules, r 14.8.
9 Driessen v Earthquake Commission & Southern Response Earthquake Services Ltd [2016] NZHC 1048 at [23].
[13] The defendants also seek a disbursement of $95.65. In total, I award $6,787.65 in costs and disbursements to the defendants.
Costs on non-party discovery application
[14] On 16 May 2025, the defendants applied for non-party discovery in relation to ACC, WorkSafe, and Bush International Consulting Ltd (BICL). The application was opposed by the plaintiffs. I granted the application in respect of ACC and WorkSafe,10 and ordered the defendants to pay reasonable costs and disbursements on an indemnity basis to ACC and WorkSafe.11
[15] I now need to determine the costs payable by the plaintiffs to the defendants, given the defendants’ success. I consider costs on a 2B basis plus disbursements are reasonable and I award costs on the following basis:
Cost item Allocation Amount 22. Filing interlocutory application 0.6 $1,434 11. Filing memorandum for first or subsequent case
management conference or mentions hearing
0.4
$956
13. Appearance at first or subsequent case management
conference
0.3
$717
Total $3,107
[16] I also award a disbursement of $650 for the defendants’ filing fee. In total, I award $3,757 to the defendants in costs and disbursements.
Costs in relation to defendants’ memorandum of 18 June 2025
[17] On 17 June 2025, I issued a minute granting the non-party discovery application.12 The plaintiffs filed a memorandum on the same day seeking recall of that minute and making submissions in opposition to the application. On 18 June 2025, the defendants filed a memorandum opposing recall, and further submitting on the non-party application and other discovery issues arising from orders
10 Talley’s Group Ltd v Television New Zealand Ltd, HC Auckland, 17 June 2025 [Minute of Andrew J].
11 I also ordered the defendants to pay BICL’s reasonable costs in having responded to the application.
12 See above n 10.
I made on 2 May 2025.13 At [26(g)] of that memorandum, the defendants sought an order that the plaintiffs pay the defendants’ costs in respect of the memorandum.
[18] As the defendants were successful in opposing the recall of my minute and in ultimately obtaining non-party discovery (although I hasten to note that any costs award in respect of the 18 June 2025 memorandum is separate to the costs award for the successful non-party discovery application), I order that the plaintiffs pay the defendants costs on a 2B basis in respect of the 18 June 2025 memorandum. While there is no direct equivalent for that award in the High Court Rules, I award costs equivalent to the filing of a memorandum for case management and, accordingly, the defendants are awarded $956.
Costs on discovery applications
[19] In my judgment of 20 March 2025, I declined in its entirety Talley’s Group’s application for further and better discovery in relation to documents relating to the responsible publication defence, and declined to require TVNZ to reconsider their claim of source confidentiality, to order inspection by the Court or to set aside confidentiality, or to strike out TVNZ’s responsible publication defence.14 I declined TVNZ’s application for standard discovery and instead ordered the parties to provide tailored discovery on terms set out in my judgment.15 As both parties had a measure of success, I was of the preliminary view that costs should lie where they fall and I directed that, if the parties could not agree costs, then memoranda should be filed.16
[20]The parties have not been able to agree costs.
Submissions
[21] The defendants submit the plaintiffs’ only success on their application was in respect of their requests that the defendants revisit their discovery on some communications and documents. This, they say, does not detract from the defendants’
13 Talley’s Group Ltd v Television New Zealand Ltd HC Auckland CIV-2021-404-002354, 2 May 2025 [Minute of Andrew J – outstanding discovery].
14 Talley’s Group Ltd v Television New Zealand Ltd [2025] NZHC 576.
15 At [140].
16 At [143].
substantial success in opposing the application. Having successfully opposed the plaintiffs’ application, they seek costs of $14,942.35.
[22] In respect of the defendants’ application for standard discovery, they submit that no costs order should be made as the application was formally dismissed but orders were made against the plaintiffs, meaning there was mixed success and costs should lie where they fall.
[23] The plaintiffs submit that while their application was dismissed in respect of the confidentiality issues, they had partial success as further discovery was required from the defendants. They also submit that, in respect of the defendants’ application for discovery, the only real dispute was as to whether discovery would be tailored or standard and, on that issue, the plaintiffs succeeded.
[24] The plaintiffs submit that, if a costs award is to be made, costs should be awarded to the plaintiffs for successfully defending the defendants’ application for standard discovery and the defendants should be awarded costs for successfully defending the plaintiffs’ application for further discovery. When these two awards are made, the totals equal out, meaning costs would lie where they fall, as I initially indicated.
Discussion on discovery applications
[25] My preliminary view of costs on these applications has not changed and I find that costs should lie where they fall.
[26] The plaintiffs’ application of 18 September 2024 was declined in its entirety, albeit that some tailored discovery was ordered. As such, it would ordinarily be the case that the defendants would be awarded costs for successfully opposing the application. However, the defendants’ application of 1 November 2024 was also largely declined. While the defendants have attempted to argue that they had some success in that application as tailored discovery was ordered, this suggestion fails to acknowledge that the plaintiffs accepted that tailored discovery would be appropriate. For example, in their submissions of 4 February 2025, they stated:
The parties disagree substantially about what compliance with a standard discovery order would entail in this case. … The more productive course is to engage now over the specific types of further documents that the defendants say should be discovered.
[27] Given the plaintiffs’ submissions in opposing the defendants’ application for standard discovery, the defendants are claiming to have succeeded on a point the plaintiffs had essentially conceded early on. As such, my order for tailored discovery was not the result of a partially successful application by the defendants but was reflective of a position that was effectively agreed by both parties. The defendants’ submission that costs should lie where they fall in relation to their standard discovery application overlooks the reality of the situation and, while no order is necessary, I would award costs in favour of the plaintiffs in respect of the defendants’ discovery application as they successfully opposed the critical orders sought.
[28] As Mr Potter points out, when the “costs awards” on the respective applications are correctly calculated, the amounts set off equally.17 Accordingly, costs lie where they fall.
Result
[29] I award costs and disbursements of $6,787.65 to the defendants for successfully opposing the plaintiffs’ strike-out application of 30 June 2022.
[30] I award costs and disbursements of $3,757 to the defendants on their successful application for non-party discovery.
[31] I award costs of $956 to the defendants in respect of their 18 June 2025 memorandum.
[32] Costs on the discovery applications determined in my judgment of 20 March 2025 lie where they fall.
17 I note that, while the defendants seek $14,942.35, the plaintiffs say this amount should be
$11,118.35. I have reviewed and agree with the plaintiffs’ amendments to the defendants’ table of costs and am satisfied that the amount suggested by the plaintiffs is a more accurate reflection of the costs awardable.
[33] All other outstanding costs are to be determined by the trial Judge at the end of the trial.18
Andrew J
18 Costs on other aspects of the discovery process are to be determined at the end of the trial (see above n 10 at [13]). Costs on the discontinuance by the fifth plaintiff are to be determined at the end of the trial (Talley’s Group Ltd v Television New Zealand Ltd HC Auckland CIV-2021-404-002354, 2 May 2025 [Minute of Andrew J – discontinuance] at [2].
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