Taua v Tahi Enterprises Limited

[2019] NZHC 2861

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1589

[2019] NZHC 2861

BETWEEN

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER and MIRIAMA TAMAARIKI as
trustees of the Te Kawerau Iwi Tribal Authority

Plaintiffs

AND

TAHI ENTERPRISES LIMITED

First defendant

DIANNE LEE
Second defendant

TAO (MARTIN) LI

Third defendant

Hearing:

On the papers

Counsel:

K J Crossland for the plaintiffs

M Heard and C Upton for the defendants

Judgment:

5 November 2019

JUDGMENT OF JAGOSE J

[Costs]

The judgment was delivered by me on 5 November 2019 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Shieff Angland, Auckland LeeSalmonLong, Auckland

TAUA,v TAHI ENTERPRISES LIMITED [2019] NZHC 2861 [5 November 2019]

[1]    My 29 August 2019 minute explained the parties reached an interim accommodation, pending the Court of Appeal’s March 2020 hearing of related proceedings between them. The parties would similarly have accommodated vacation of the fixture before me for an interlocutory injunction, but failed to explain the scope of adjournment sought, with the result the civil list judge maintained the fixture, with that consensual result.

[2]    At both parties’ request, I reserved the issue of costs. I regret the delay in responding to the parties’ timely engagement on costs. Their memoranda only were put before me for decision this week.

[3]    The defendants now seek 2B costs in the amount of $5,377.50, essentially on the basis their expenses in preparation for and attendance at the hearing were wasted. Expressed in that way (and not as a (presently, unjustified) claim for indemnity costs)1, the claim relies entirely on my discretion,2 as the defendants do not claim benefit of any principle for determination of costs,3 and “increased costs” spring from such principled determination.4 Thus the claim is just for the plaintiffs’ contribution to the defendants’ expenses. Implicit in the defendants’ claim is any wastage is attributable to the plaintiffs’ failure, here to express to the civil list judge the “cogent” and ‘efficient’ reasons for the proposed adjournment. But the request for adjournment was joint; both parties bear responsibility for any shortfall in its expression.

[4]    I see no reason to exercise my discretion in favour of a determination of costs now. The application remains for determination; only appearance time may be wasted; and either party ultimately may be successful. My minute recorded my determination may include costs’ further reservation, which is my decision.

[5]Costs are reserved.

—Jagose J

1      HCR 14.6(4).

2      HCR 14.1.

3      HCR 14.2.

4      HCR14.6(1).