Trotter v Grant

[2014] NZHC 119

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-1568 [2014] NZHC 119

BETWEEN

ROSS MACKAY TROTTER

Plaintiff

AND

CHRISTOPHER STUART GRANT Defendant

Hearing:	On the papers
Counsel:	P M James for plaintiff K W Clay for defendant
Judgment:	11 February 2014

COSTS JUDGMENT OF FOGARTY J

Solicitors:

Saunders & Co, Christchurch

Saunders & Robinson Brown, Christchurch

TROTTER v GRANT [2014] NZHC 119 [11 February 2014]

[1]      Following  a  hearing  on  12  November  2013,  I  granted  the  plaintiff’s application for an interim injunction by way of a reserved judgment released on

28 November 2013.

[2]      Costs were awarded to the plaintiff on a 2B basis, and subsequently a costs order was sealed by the Court on 28 November.

[3]      By memorandum dated 2 December, counsel for the defendant raised issue with the costs order, namely:

(a)      Time claimed for commencement of the proceedings;

(b)      Time    claimed    for   preparation    of   the    first    case   management conference,  and;

(c)      Time claimed for filing memorandum of counsel of 19 November.

[4]     Counsel for the plaintiff accepts that (b), preparation for the first case management conference, is incorrectly claimed.  The outstanding issues, (a) and (b) remain unresolved.

[5]      The principal issue is (a), whether or not the plaintiff is entitled to claim for the costs of preparing the statement of claim.  The defendant argues that the plaintiff has not succeeded in a final judgment in the proceeding; the interim order did not dispose of the proceeding.  On that basis, an order for costs for the plaintiff for the commencement of proceedings is therefore inappropriate.

[6]      I do not think that the abundant authorities on the subject of fixing costs in interlocutory applications offer any particular guidance.  I distinguish the case, AC Nielson (NZ) Ltd v Pappafloratos ENC,1 where at [7] Judge Shaw stated:

Although interim, the interim injunction application was a significant piece of litigation, and whatever the outcome of the substantive hearing, the successful [party] are entitled to an award of costs.

1 AC Nielson (NZ) Ltd v Pappafloratos ENC Wellington WC17B/03. 5 September 2003

[7]      There are no New Zealand cases directly on point.  The case which comes closest is Global Integrated Solutions Ltd v Waite.2   There the plaintiffs were granted an interim injunction which effectively resolved the matter in their favour.   The plaintiffs argued that they were entitled to costs in relation to the statement of claim in addition to those in respect of the interim injunction.   The Court favoured the plaintiffs, as the statement of claim was required to be filed as the basis for the

application for an interim injunction.

[8]      Waite can be distinguished from the present case as there the proceedings had been discontinued.

[9]      The overriding principle underlying our rules is that costs follow the event. The event here is an interim ruling.  The existing proceedings remain on foot and indeed, need an urgent hearing.  I consider it is premature to award the plaintiff costs for preparing the statement of claim.  Rather, that part of the application is reserved.

[10]     I  turn  to  the  remaining  contentious  item  (b).     The  memorandum  of

19 November 2013 was filed by counsel for the defendant.   It sought an urgent telephone conference to receive guidance from the Court in relation to the key issue of the plaintiff’s  return  to  his  previous  position  as  an  employee.   The plaintiff responded to the memorandum, filing its own memorandum in reply.  The plaintiff claims 0.4 of a day for this step by analogy, and in accordance with item 11 of Schedule 3 of the High Court Rules and r 14.5(1)(b).

[11]     The  plaintiff ’s  reply  document  was  in  the  circumstances  necessary  and useful.  Costs are awarded for that item.

[12]     The result is that the plaintiff is entitled now to costs on a 2B basis for a total of four days, the sum of $7,960, together with disbursements of $2,154.74.  Costs for preparation of the statement of claim are reserved.

Fogarty J

2 Global Integrated Solutions Ltd v Waite HC Auckland CIV-2011-404-1606, 9 November 2011.