Telfer Electrical Nelson v Trotter

[2018] NZHC 171

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2017-442-33

[2018] NZHC 171

BETWEEN

TELFER ELECTRICAL NELSON

Plaintiff

AND

KENNETH JOHN TROTTER

First Defendant

DUNCAN COTTERILL NELSON TRUSTEE (2010) LIMITED, GAIL

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

Second Defendants

Hearing:

On the papers

Counsel:

G A Cooper for Plaintiff

J C Ironside for Defendants

Judgment:

16 February 2018

JUDGMENT OF CHURCHMAN J

Background

[1]        By interlocutory application dated 30 May 2017 the plaintiff applied for an interim injunction restraining the first defendant from being employed by NZ Electrical Solutions Ltd (NZESL).

[2]        That application was heard on 12 December 2017 and a judgment dismissing it issued on 15 December 2017.

TELFER ELECTRICAL NELSON v TROTTER [2018] NZHC 171 [16 February 2018]

[3]        The parties have been unable to agree costs and have filed memoranda. The defendants’ memorandum was dated 22 December 2017 and the plaintiff’s 1 February 2018.

[4]The defendants seek:

(a)costs in relation to successfully opposing the plaintiff’s interlocutory application for an interim injunction;

(b)costs in relation to their application to exclude defined parts of the plaintiff’s reply evidence, dated 28 November 2017;

(c)in respect of the above two interlocutory applications, increased costs under High Court Rules 2016 (“HCR”) 14.6(3)(b)(ii) or (d); alternatively, costs on a 2B basis;

(d)as the defendants are not registered for GST and therefore unable to claim for GST, the defendants seek GST in relation to disbursements;

(e)the Court’s approval for the inclusion of Professor Graeme Guthrie’s invoice as a disbursement under HCR 14.12(2).

[5]The plaintiff disputes the defendants’ cost application on three grounds:

(a)that the defendants have included items to which they are not entitled in the interlocutory application;

(b)the defendants are not entitled to costs for their application to exclude evidence; and

(c)it is not fair or reasonable to claim an uplift in costs in the circumstances.

[6]The plaintiff seeks an order that:

(a)determination of the costs be reserved pending the outcome of the defendants’ appeal as to jurisdiction of this Court and the final determination of the substantive proceedings; or alternatively

(b)an award of costs of $6,913.00.

Application by plaintiff to reserve costs

[7]        As the plaintiff has submitted that this is an appropriate case for costs to be reserved pending the outcome of an appeal lodged by the defendants to their protest as to jurisdiction which was determined by Dobson J on 17 October 2017, I will address that issue first.

[8]        The submission of the plaintiff is that, if the defendants’ appeal to the Court of Appeal is successful, any orders made by this Court (including any order as to costs) cannot stand due to the Court’s lack of jurisdiction to make such orders.

[9]        This proposition is not accepted. The application for an injunction came before the Court at the plaintiff’s insistence. The plaintiff was aware that the defendants had appealed the jurisdictional point to the Court of Appeal but nonetheless sought (as…