TPD 2018 Limited v Godfrey and Company Limited

[2020] NZHC 2580

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-000093

[2020] NZHC 2580

BETWEEN

TPD 2018 LIMITED

Plaintiff

AND

GODFREY AND COMPANY LIMITED

Defendant

AND

CNZ (AUCKLAND) LIMITED

(in liquidation) Third Party

Hearing:

On the papers

Counsel:

S O McAnally for the Plaintiff/Third Party

R J Hollyman QC, T E Bielby & K F T Stolberger for the Defendant

Judgment:

1 October 2020

JUDGMENT OF CAMPBELL J

[Costs]

This judgment was delivered by me on 01 October 2020 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Keegan Alexander Solicitors, Auckland Lowndes Jordan, Auckland

R J Hollyman QC, Shortland Chambers, Auckland

TPD 2018 LIMITED v GODFREY AND COMPANY LIMITED [2020] NZHC 2580 [1 October 2020]

[1]                  The plaintiff and the third party claim costs on an application that they made on 6 August 2020. The application was for an enforcement order under r 7.48. Enforcement was sought of an interlocutory order that the defendant provide, by 31 July 2020, further particulars of its defence and of its claim against the third party.

[2]                  That application was resolved, apart from the matter of costs, in terms that were set out in a joint memorandum dated 28 August 2020. This recorded that the defendant had provided the required particulars in draft amended pleadings, which the parties proposed the defendant file and serve by 2 September 2020.

[3]                  The application therefore achieved its object. The plaintiff and the third party succeeded. The starting point is that, as the successful parties, they are entitled to costs: r 14.2(1)(a).

[4]                  The defendant resists the claim for costs. Its primary position is that no costs should be awarded. It says that the application was unnecessary, and that the costs of preparing the application could have been avoided through further communication to counsel for the defendant.

[5]                  Rule 14.7(f)(ii) does allow the Court to refuse or reduce costs where the party claiming costs has contributed unnecessarily to the costs of a proceeding by taking an unnecessary step. But the application was not necessary. On 23 July 2020 the defendant consented to an order that it provide particulars by 31 July 2020. After close of business on 31 July 2020 counsel for the defendant advised that particulars could not be provided that day, but that they would “endeavour” to provide them as early as possible the following week. By 6 August 2020 they had not been provided, and the application was brought. Even with the application, the defendant did not formally provide the particulars until 2 September 2020. These facts, in light of there being a ten-day trial commencing 2 November 2020, speak for themselves.

[6]                  In reaching the view that the application was not unnecessary, I do not have to address, or to try to allocate responsibility for, the prior delays by both parties in relation to discovery and particulars.

[7]                  As a fall-back position the defendant proposed that, if the background was too complex, costs be reserved for determination in the substantive proceeding. As I hope appears from my reasons, the background was not too complex.

[8]                  Finally, the defendant submitted that costs should be assessed by reference to band A. No reason was given for that submission. I have reviewed the application and the affidavit of Mr Ziegler in support dated 6 August 2020. They would have required a normal amount of time to prepare. Band B is appropriate.

[9]                  Accordingly, I order that the defendant pay to the plaintiff and the third party cost’s of $2,390 and disbursements of $540.

Campbell J