Te Tumu Miere Limited (in liquidation) v Zealande Limited

[2019] NZHC 106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-2883

[2019] NZHC 106

BETWEEN

TE TUMU MIERE LIMITED (IN LIQUIDATION)
Plaintiff

AND

ZEALANDE LIMITED

Defendant

Hearing:

On the papers

Appearances:

B J Burt and T J Cooley for the plaintiff

B D Gustafson and G R Grant for the defendant

Judgment:

8 February 2019

JUDGMENT OF JAGOSE J

[Costs]

This judgment is delivered by me on 8 February 2019 at 10 am pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel/Solicitors:

James Burt, Barrister, Auckland

Brookfields, Auckland (T J Cooley) Bret Gustafson, Barrister, Auckland Rainey Law, Auckland (G R Grant)

TE TUMU MIERE LTD (IN LIQ) v ZEALANDE LTD [2019] NZHC 106 [8 February 2019]

[1]    My judgment of 4 January 2019 at [32] took the preliminary view, as the successful party in resisting TTM’s application for interim injunctions, Zelande was entitled to 2B costs. That was because, from what I then knew of it, nothing in the steps taken by Zelande in this averagely complex proceeding required other than a normal amount of time.

[2]That is largely accepted, amounting to 2B costs in the sum of $7,916.50, plus

$168.30 in disbursements. But Zelande says that is not the case for two steps – drafting the notice of opposition and six affidavits in support, and preparation of written submissions for the hearing on 4 January 2019 – for which it says “a comparatively large amount of time” was required, thus engaging band C. And it seeks a 50% uplift on grounds of TTM’s contended “unnecessary and misguided” proceeding and urgent injunctive relief. Finally, disbursements are sought for deponents’ travel costs incurred in preparing and swearing their affidavits and in attending the hearing.

[3]    Given the breadth of interlocutory applications’ subject matter, the amount of time that is to be considered reasonable varies hugely between applications. The requisite comparator for diversion from ‘normal’ is difficult to establish. ‘Normal’ is a reference to the amount of time, and not the timing of the application during the Court’s vacation.

[4]    Responsive opposition to factually intense contentions in pursuit of interim injunctions reasonably may consume a larger amount of time than opposing applications for other than interim injunctions. On reflection, I accept that was the case here, although Zelande’s opposition was not exceptional in the context of interlocutory injunction applications. However, it was not reasonable for preparation of the written submissions to require a comparatively large amount of time: the grounds for opposition are well-understood and required relatively little exposition. I will allow Zelande 2C costs for step 23 only.

[5]    Particularly given the general principle costs should be predictable and expeditious, I see no basis to award increased costs. In circumstances of Zelande’s retention of TTM’s property, some interlocutory step was inevitable, and I am not

prepared critically to distinguish between the injunction application as was sought and other interlocutory relief. Neither am I prepared to have regard for the parties’ failed commercial negotiations to such ends, which would not have settled or disposed of proceedings between them.

[6]    Last, the deponents’ fuel costs do not constitute a disbursement in terms of Rule 14.12. They are not allowed.

[7]    I order TTM to pay Zeland 2B costs for its steps in the proceeding for all but step 23, which is to be calculated at 2C, plus allowable disbursements.

—Jagose J