Twentieth Century Fox Film Corporation v Dotcom

[2014] NZHC 2565

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001272 [2014] NZHC 2565

UNDER

Part 32 of the High Court Rules 2009

BETWEEN

TWENTIETH CENTURY FOX FILM CORPORATION, DISNEY ENTERPRISES INC, PARAMOUNT PICTURES CORPORATION, UNIVERSAL CITY STUDIOS PRODUCTIONS LLP and WARNER BROS ENTERTAINMENT INC Applicants

AND

KIM DOTCOM First Respondent

BRAM VAN DER KOLK Second Respondent

RSV HOLDINGS LIMITED Third Respondent

Judgment:                21 October 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 21 October 2014 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

TWENTIETH CENTURY FOX FILM CORPORATION & ORS v DOTCOM & ORS [2014] NZHC 2565 [21

October 2014]

[1]      In May 2014 the applicants filed an originating application for freezing and ancillary orders in respect of Mr Dotcom’s assets. Although not urgent at the time of filing it became urgent within a few weeks and the applicants sought interim relief in the form of ancillary orders requiring Mr Dotcom to disclose the nature and extent of his assets.1    I granted costs to the applicants on the application for ancillary orders and Mr Dotcom’s unsuccessful application for a stay of execution on a 2C basis.  I declined to make an order for the reimbursement of the expert witness fees rendered by Mr Rotstein but invited a further memorandum and evidence addressing the issue

of reasonableness that Mr Dotcom’s counsel had raised.

[2]      I now have further memoranda from counsel, together with another affidavit filed on behalf of the applicants explaining the invoices rendered by Mr Rotstein. Mr Dotcom still resists reimbursement of the figures on the basis that the evidence related to both the substantive application and the application for ancillary orders and resisting the application for stay of execution.  Ms Walker submitted that only 25 per cent of the costs should be payable at this point.  I do not accept that submission. It is artificial.  The application for the ancillary orders relied on the evidence in its totality.

[3]      I   am   satisfied   that   the   applicants   are   entitled   to   reimbursement   of Mr Rotstein’s    costs,    namely    US$15,901.802      and    US$17,347.053      totalling US$33,248.85.  When the applicants first sought reimbursement of these figures they converted  to  NZ$40,106.13.    In  her  most  recent  memorandum  Ms  Walker,  for Mr Dotcom, does not take any issue with that conversion and I therefore direct reimbursement of those figures.

[4]      Ms Walker submits, further, that the applicants should not be entitled to costs for the initial steps of filing the application and affidavit in support and preparation for the first case management conference.   I do not accept that submission.   The originating   application   contained   the   application   for   ancillary   orders   which

subsequently fell to be heard urgently.   However, I accept that the first two steps

1      Twentieth Century Fox Film Corporation & Ors v Dotcom [2014] NZHC 1789.

2      Invoice 311812M.

3      Invoice 313531.

ought not be calculated on a 2C basis but rather on a 2B basis.  I will leave counsel

to confer regarding the calculation of those costs.

P Courtney J