Telfer Electrical Nelson Limited v Trotter - [2018] NZHC 480

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2017-442-33

[2018] NZHC 480

BETWEEN TELFER ELECTRICAL NELSON LIMITED
Plaintiff

AND

KENNETH JOHN TROTTER

First Defendant

GAIL ELIZABETH TROTTER AND KENNETH JOHN TROTTER AS
TRUSTEES OF THE K & G TRUST

Second Defendants

Judgment: 20 March 2018

JUDGMENT OF DOBSON J

[Costs]

[1] In October 2017, I delivered a judgment largely dismissing the defendants’ protest to the jurisdiction of the High Court to hear the causes of action pursued by the plaintiff.1 My judgment did, however, stay one of four causes of action that I found was within the jurisdiction of the Employment Relations Authority.

[2] Subsequently, on 7 November 2017,2 I dismissed an application by the defendants to stay the effect of my October judgment pending an appeal to the Court of Appeal.

[3] Subsequent to those steps in the proceeding, Churchman J dismissed the plaintiff’s application for an interim injunction to restrain relevant activities by the

1 Telfer Electrical Nelson Ltd v Trotter [2017] NZHC 2528.
2 Telfer Electrical Nelson Ltd v Trotter [2017] NZHC 2718.

TELFER ELECTRICAL NELSON LTD v TROTTER [2018] NZHC 480 [20 March 2018]

defendants,3 and separately dealt with costs arising on the interim injunction application.4

[4] The proceeding has now been referred back to me to settle costs on the steps dealt with by me.

[5] The defendants’ initial response to the plaintiff’s request for costs to be settled is that the decision ought to be deferred until resolution of their appeal. Alternatively, liability to pay any costs ordered against them ought to be stayed pending the outcome of the appeal. In addition, the defendants raise numerous grounds challenging the bases for the plaintiff’s claim for costs.

[6] In my October 2017 judgment, I indicated a provisional view in relation to costs in the following terms:

[62] The defendants have succeeded to a modest extent in obtaining a stay of one of the company’s causes of action. The company has made out jurisdiction for what appears to be the larger part of its claims. In those circumstances, my provisional view is that the company should be entitled to costs. To the extent that the defendants’ partial success might otherwise warrant a reduction from 2B scale costs, my provisional view is that the defendants’ conduct in disregarding the directions on presentation of evidence, and their insistence on citing the content of the [Record of Settlement] but refusing the Court’s request to view its content would justify a full award of costs in accordance with the 2B scale.

[7] On the protest to jurisdiction judgment, the plaintiff has sought costs on a 2B basis, amounting to $9,143, together with a 50 per cent uplift on account of the defendants’ conduct, which would total $13,714. Disbursements are also sought, including a sum of $498 for return airfares for counsel from Christchurch to Nelson. The plaintiff also seeks costs on a 2B basis of $1,784 for the preparation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 480
Decision Date: 20 March 2018

CaseChat Overview and Summary

Telfer Electrical Nelson Limited, the plaintiff, sought to recover costs from the defendants, Kenneth John Trotter and Gail Elizabeth Trotter, in a case involving multiple claims and proceedings. The defendants had contested the jurisdiction of the High Court over the plaintiff's claims and later sought a stay of the effect of the court's judgment. The plaintiff now sought costs for these proceedings.

The primary legal issues before the court were whether the defendants should be liable for costs, and if so, the appropriate quantum of those costs. The defendants argued that the decision on costs should be deferred until the outcome of their appeal against the earlier judgment on jurisdiction. They also contested the plaintiff's claim for costs on various grounds, including the amount of time claimed and the necessity of certain expenses.

The court held that the defendants were liable for costs based on their limited success in the proceedings and their conduct during the hearings. The court found that the defendants' conduct in disregarding directions and presenting unverified documents to the court was inappropriate and warranted a full award of costs on the 2B scale. The court also approved the plaintiff's claim for an uplift on account of the defendants' conduct. Regarding the specific quantum of costs, the court reduced the time claimed by the plaintiff for the hearing and allowed a 15% uplift. The court also approved the disbursement for airfares and limited the costs for opposing the stay application. In the interim injunction hearing, the court awarded costs to the defendants for their efforts in contesting the admissibility of mediation documents, reducing the time claimed from 2.2 days to 1.8 days.

The court ordered that the costs for the protest to jurisdiction proceedings be $10,898.55 plus disbursements of $11,409.05, for a total of $22,307.60. The costs for opposing the stay application were $892.00. The costs for the preliminary step in the interim injunction hearing were $4,014.00. The court further clarified that the respective costs entitlements could be offset against each other and that the defendants' obligation to pay costs should be stayed pending the outcome of their appeal, provided they prosecuted the appeal promptly.

Orders