Tyre Collection Services Ltd v Le Roy - [2016] NZHC 898

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000060 [2016] NZHC 898

BETWEEN
TYRE COLLECTION SERVICES

LIMITED Plaintiff

AND

MICHAEL BENNY LE ROY First Defendant

AND

JAMISON INVESTMENTS LIMITED Second Defendant

AND

TYRE RECYCLING SERVICES NEW ZEALAND LIMITED

Third Defendant

Hearing: On the papers

Appearances:

G A Biggs for Plaintiff
D J Ballantyne for the First, Second and Third Defendants

Judgment:

5 May 2016

JUDGMENT OF DUNNINGHAM J RE: COSTS DECISION

[1] On 10 March 2016, I granted the plaintiff’s application for interim injunction orders. At the conclusion of the judgment I indicated that the plaintiff was entitled to costs and, on a preliminary view, indicated that costs on a 2B basis were justified. The parties have been unable to agree on costs and the plaintiff now seeks costs on a
2B basis.

The plaintiff ’s submissions

[2] In support of the plaintiff ’s application for costs, it notes that:

TYRE COLLECTION SERVICES LIMITED v LE ROY [2016] NZHC 898 [5 May 2016]

(a) costs on a 2B basis are substantially less than two-thirds of the

plaintiff’s actual costs (which are supported by attached invoices);

(b)the proceedings were of at least average complexity, noting the defendants’ acknowledgement in a memorandum dated 1 March 2016 that this was a “complex interlocutory application for interim injunction[s]”.

[3] Costs are sought for steps 12, 22, 24, 25, 26, 29 and, by analogy, step 30, under Schedule 3 of the High Court Rules as set out in the following table:

Step
Attendance

Allocated

Days

Daily Rate

Cost

12

Appearance at mentions hearing or call-over

0.2

$2,230

$446.00

22

Filing interlocutory application

0.6

$2,230

$1,338.00

24

Preparation of written submissions

1.5

$2,230

$3,345.00

25

Preparation by applicant of bundle for hearing

0.6

$2,230

$1,338.00

26

Appearance at hearing of defended application

0.25

$2,230

$557.50

29

Sealing order

0.2

$2,230

$446.00

30

Plaintiff ’s preparation of affidavits (by analogy)

1.5

$2,230

$3,345.00

Sub Total

4.85

$10,815.50

[4] Counsel for the plaintiff explains that, in claiming for the preparation of the plaintiff’s affidavits, he has determined that by analogy with a time allocation for preparation of briefs and affidavits under step 30 for trial preparation. On a Category B basis, 2.5 days are allocated for step 30. While step 30 deals with full affidavits, the plaintiff says that the type of application in this case needed the factual background to the proceeding fully set out and the allowance sought of 1.5 days on a
2B basis for the preparation of the plaintiff’s affidavits is appropriate.

[5] In addition, the plaintiff seeks the filing fee on an interlocutory application of

$500, plus the process server’s fees of $183.00.

[6] The plaintiff also seeks costs of $500 for preparing the costs memorandum, saying costs are warranted because it was unreasonable for the defendants not to agree to resolve costs on a 2B basis.

[7] Total costs and disbursements sought are therefore $11,498.50.

The defendants’ submissions

[8] The defendants did not file a memorandum contesting the costs calculation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tyre Collection Services Ltd v Le Roy

Details

AGLC: Tyre Collection Services Ltd v Le Roy [2016] NZHC 898
Case: [2016] NZHC 898
Decision Date: 5 May 2016

CaseChat Overview and Summary

The case of Tyre Collection Services Limited v Le Roy involves a dispute between the plaintiff, Tyre Collection Services Limited, and the first, second, and third defendants, Michael Benny Le Roy, Jamison Investments Limited, and Tyre Recycling Services New Zealand Limited, respectively. The plaintiff sought interim injunction orders, which were granted by the court. The plaintiff now seeks costs for the proceedings on a 2B basis. The court was required to decide whether the costs sought by the plaintiff were reasonable and justified. The court considered the principles of costs determination, including the complexity of the proceedings and the presumption that costs should be fixed when the application is determined. The court also considered the defendants' submissions on the costs claim. The court held that, except for one step, the costs claimed by the plaintiff were reasonable and justified. The court awarded costs on a 2B basis for most steps and on a 2C basis for one step. The court also awarded disbursements in the plaintiff's favour. The final orders of the court were that the plaintiff is awarded 2B costs on all steps in the proceedings except step 22, where 2C costs are awarded and this negates the need to claim under step 30. This equates to an award of $10,592.50 in costs. In addition, disbursements of $683 are awarded in the plaintiff's favour, making a total amount of $11,575.50.

Orders