W H Holdings Limited v Wilding

[2015] NZHC 2238

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000232 [2015] NZHC 2238

BETWEEN

W H HOLDINGS LIMITED

Plaintiff

AND

TIMOTHY WILDING First Defendant

KATHRYN ANN WILDING Second Defendant

Hearing:	(Dealt with on the papers)
Counsel:	R J Hopkins for Plaintiff P J Dale for Defendants
Judgment:	16 September 2015

JUDGMENT OF GENDALL J (As to costs)

[1]      In a judgment I issued in this proceeding on 28 May 2015 I refused an application by the plaintiff for an interim injunction and reserved costs. At para [45] of that judgment I indicated that if the parties were unable to reach agreement on the question of costs they could file memoranda sequentially, and in the absence of any party indicating they wished to be heard on the matter, I would decide the question of costs based on the material then before the Court.

[2]      Counsel for the parties have now indicated that they have been unable to agree on the question of costs and have filed submissions with respect to the costs issue.

[3]      The defendants, as the successful parties in opposing the application for an interim injunction, seek costs here on a scale basis and they say they should receive

increased costs by way of a 50% uplift on scale at this point.

W H HOLDINGS LTD v WILDING [2015] NZHC 2238 [16 September 2015]

[4]      The plaintiff contends that costs at this point should be reserved until the substantive hearing has been determined on the basis that the interests of justice require that all issues should be heard before costs are finally fixed and awarded.

[5]      Alternatively, the plaintiff maintains that if the Court does decide to fix costs immediately, these should be simply on a category 2B scale basis without any uplift. In addition, if costs are awarded then they should not be payable until after the final determination of this proceeding.

[6]      The plaintiffs also raise certain issues concerning some of the costs claimed by the defendants, even on a category 2B basis.

[7]      Rule 14.2(a) High Court Rules provides as a starting point that the party who fails with respect to an interlocutory application should pay costs to the party who succeeds.

[8]      In addition, r 14.8(1) High Court Rules provides that unless there are special reasons to the contrary, costs must be fixed when an interlocutory application is determined.

[9]      Notwithstanding these matters, the plaintiffs here are seeking that the award and fixing of costs should be reserved pending the substantive hearing.  This is what occurred in this Court in Gibston Downs Wines Limited & Anor v Perpetual Trust Limited & Ors.1

[10]     Notwithstanding this however, in my view, the present case is one where costs on the interlocutory interim injunction application should be determined now. This is especially the case, as I understand it from submissions advanced by the parties, because there are other outstanding costs awards made recently with respect to these parties, where some possible offset or adjustment with costs on the interim

injunction matter might properly be made.

1      Gibston Downs Wines Limited & Anor v Perpetual Trust Limited & Ors HC Christchurch CIV-

2010-409-1716, 6 October 2010, French J.

[11]     I therefore reject the plaintiff’s contention that the award and fixing of costs here should be reserved pending the substantive hearing.

[12]     As I have noted above, the defendants have been successful in this case in opposing the plaintiff ’s interim injunction application and, as such, I am of the view in terms of r 14.2(a) that costs should follow the event in the normal way and be payable here to the defendants.

[13]     On that aspect, in terms of the amount of a costs award to be made, I take the view that there is nothing of real moment in this case to justify anything more than an award of standard category 2B costs for the defendants’ opposition to the interim injunction application.

[14]     As I have noted above, the defendants seek an increase above category 2B scale costs of 50%.  The grounds for increased costs are provided for under r 14.6(3) High Court Rules.  Having considered the instances in which increased costs have been in the past, and should be imposed, I am of the view  that none of those circumstances are present with respect to the interlocutory application for which costs are now to be awarded.

[15]     Accordingly I conclude that the defendants are entitled to an award of costs but calculated only on a category 2B basis with respect to the plaintiff’s unsuccessful interim injunction application.

[16]   Turning now to the amount claimed by the defendants for costs and disbursements here, they are outlined in a schedule attached to earlier submissions advanced by their counsel.

[17]     Total costs calculated on a 2B basis together with disbursements amount to

$8830.  As noted above, there is to be no uplift with respect to usual category 2B costs.  Counsel for the defendants, however, also seeks an award of costs in respect of the costs application itself amounting to $1500.  Under all the circumstances here, in  my view,  that  is  not  appropriate.    I reject  that  claim  for costs  on  the costs application itself.

[18]     Returning to the $8830 total quantum claimed, counsel for the plaintiff takes issue  with  a  one  day  $1990  claim  made  for  “preparation  of  an  affidavit  in opposition” made by the defendants.  Although the plaintiff contests this claim, in my view it is properly made in all the circumstances.   Detailed affidavit evidence was required in this case.   That $1990 claim for preparation of the affidavit in opposition is approved.

[19]     Lastly, on quantum questions, counsel for the plaintiff argues that the time allocation for the hearing should be measured in quarter days rather than half days and as the hearing, it is said, only went for three quarters of a day, the claim for a full day should be slightly adjusted.

[20]   In my view this contention is also misplaced.   The hearing, from my recollection, certainly occupied the best part of one full day and I therefore allow

$1990 for a one day category 2B charge for appearance at the hearing.

[21]     For all these reasons the defendants are entitled to costs from the plaintiff with respect to the interim injunction application payable now.  An award of $8830 for costs and disbursements as sought by the defendants is now made against the plaintiffs with respect to that application.

[22]     As I understand the position, it could well be that the defendants themselves have a costs liability in favour of the plaintiff with regard to other matters concerning this proceeding and their relationship.  It may well be that an offset of costs between the two amounts concerned might be seen as appropriate.

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch, Ewart & Ewart, Auckland