Triastra Limited v The Proprietors of Tahara C Block
[2018] NZHC 1580
•28 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-419-000318
[2018] NZHC 1580
BETWEEN TRIASTRA LIMITED
Plaintiff
AND
THE PROPRIETORS OF TAHAROA “C” BLOCK
Defendants
Hearing: 28 June 2018 (Determined on the papers) Appearances:
K Poole for Plaintiff
A J Horne for Defendants
Judgment:
28 June 2018
COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] This judgment determines issues relating to costs on the plaintiff’s applications for discovery, and the plaintiff’s notice requiring answers to interrogatories.
[2] Both the plaintiff and the defendants seek costs. I have received and considered memoranda from both, along with an affidavit from Ms A Bragg, filed by counsel for the plaintiff.
[3] It is plain from the material before the Court that provision of discovery as required by the High Court Rules has been far from a straight forward exercise. Each side blames the other for positions taken at various points during what should have been a straight forward exercise, undertaken in all civil litigation in this Court. The plaintiff maintains that the defendants have not complied with obligations on them and regards the defendants’ conduct as being such that there should be a substantial uplift in costs. Conversely, the defendants say that they have complied, and that it is the
TRIASTRA LIMITED v THE PROPRIETORS OF TAHAROA “C” BLOCK [2018] NZHC 1580 [28 June 2018]
plaintiff which has caused difficulties which have contributed materially to the standoff which occurred.
[4] The plaintiff says the defendants have a history of non-compliance in relation to discovery which warrants an uplift on scale, that the interrogatories issued were justified and, in any event, made only a de minimis contribution to hearing time. Responsibility for failing to reach agreement in relation to search terms for electronically mis-stored material lies at the feet of the defendants.
[5] The defendants say that they should be awarded costs because the plaintiff’s application was inappropriate and unnecessary. Documents requested on discovery had already been discovered in part, or did not exist, or could not be found, facts of which the plaintiff had been informed. The defendants say that they sought to co-operate with the plaintiff in relation to reaching agreement on key word search terms, but the plaintiff failed to respond or co-operate. So far as interrogatories are concerned, the defendants say they wrote twice to the plaintiff explaining why those interrogatories were inappropriate, and they note the Court’s preliminary view that the interrogatories were premature. They say that the plaintiff withdrew eight out of the 10 requests, and part of the remaining two requests. On that basis, the defendants say the interrogatories were not justified.
[6] The plaintiff filed an affidavit from a legal secretary in their solicitor’s firm who produced three items of correspondence, two of which were written without prejudice and were substantially redacted, to the point where neither assisted the Court in any way at all.
[7] Against this background, the schedule produced by the plaintiff shows that it seeks costs for filing a memorandum for a first case management conference or mentions hearing five times, appearing at mentions hearings or call-overs four times, filing the interlocutory application for discovery, preparing written submissions, preparing at hearing of a defended application. Costs sought on scale of $13,380 plus disbursements. However, the plaintiff seeks a 75 per cent uplift in costs so the amount claimed is $23,415.
[8] So far as interrogatories are concerned, I take into account the Judge’s observation. This, together with the fact that the majority of the interrogatories were withdrawn has led me to the view that the plaintiff is not entitled to costs in respect of interrogatories. On this issue, costs will lie where they fall.
[9] In relation to discovery, I also take into account the Judge’s observation. However, after considering all the material before the Court on this issue I find it is appropriate to attribute part of the responsibility for the difficulties which occurred to both sides, whilst making some recognition of the fact that the plaintiff did enjoy a measure of success.
[10] The plaintiff’s suggestion that there should be costs for any attendances apart from the application for discovery and related steps is inappropriate. The only steps on which there will be costs at this point are numbers 22, 24 and 26. All other steps set out in the schedule attached to the plaintiff’s memorandum dated 1 May 2018, will remain costs in the cause for consideration at a later date. This means that costs on scale 2 amount to $7,136.
[11] Given that I am satisfied that both sides contributed to a degree to the difficulties which occurred in relation to discovery, an uplift of costs is not appropriate. In any event, a request for an uplift of 75 per cent is exorbitant. Counsel for the plaintiff is reminded that the scale is set at a level intended to represent two-thirds of actual costs. Simple arithmetic shows that an uplift of 50 per cent should represent actual costs and an uplift of 75 per cent should represent approximately 17 per cent more than actual costs. Quite apart from whether any foundation is laid for an uplift in costs at all, the Court would take considerable persuasion to fix an uplift of that magnitude. Counsel would need to produce actual costs figures, and probably supporting primary information, so the Court could assess whether a request for an uplift at that level is close to, at, or above a request for indemnity costs. No such information was placed before the Court and the request for an uplift at that level was unsupported by evidence, even as to the actual fee incurred by the plaintiff in relation to the application for discovery, which as counsel will be aware, must not be exceeded by an award of costs.
[12] The previous discussion focuses mainly on the first discovery application. Having determined that a full 2B award is appropriate on that application, it is appropriate to limit the award on the second application to 50 per cent of a 2B award.
[13] The end result, therefore, is that whilst I have taken into account the Judge’s observations, I differ from her to a comparatively minor extent. The plaintiff will receive costs:
●on its first discovery application on a 2B basis without any uplift
●on its second discovery application on the basis of 50 per cent of a 2B calculation
There will be no order as to the costs of the interrogatories, the consequence of which is some recognition of the premature delivery of interrogatories.
J G Matthews Associate Judge
Solicitors:
kplegal Limited, Auckland Minter Ellison, Auckland C T Patterson, Auckland
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