Wakefield v Network Waitaki Limited

[2025] NZHC 1124

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-476-9

[2025] NZHC 1124

BETWEEN

GARRY JOHN WAKEFIELD and FIONA JEAN WAKEFIELD

First Plaintiffs

OTHER PLAINTIFFS

Second to One Hundred and Seventeenth Plaintiffs (detailed in Schedule A)

AND

NETWORK WAITAKI LIMITED

Defendant

Hearing:

(On the papers)

Appearances:

B Cuff and K Weekly for Plaintiffs

C Walker KC, W J Hamilton and A F N Larkin for Defendant

Judgment:

12 May 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

WAKEFIELD v NETWORK WAITAKI LIMITED [2025] NZHC 1124 [12 May 2025]

[1]    The plaintiffs seek costs  arising  from  my  judgment  of  26 March 2025  (the March judgment).1 There were two broad issues dealt with in the March judgment, the first was the plaintiffs application for further and better discovery, and the second was the plaintiffs challenge to a claim for privilege by the defendant.

[2]    The plaintiffs were successful in respect of the second aspect of the application and had some success in respect of the first aspect prior to the hearing when, after filing their application on 1 November 2024, the defendant filed a supplementary list of documents on 20 December 2024, discovering a substantial number of further documents. The reason for that is explained in the March judgment.

[3]Costs were reserved. The plaintiffs now seek that costs be fixed.

[4]    Mr Cuff, counsel for the plaintiffs, submits the plaintiffs were the successful party, and therefore costs should follow the event on a 2B basis.

[5]    Mr Cuff relies on the rule that in respect of an interlocutory application, costs should be fixed in accordance  with the High Court Rules 2016 (the Rules), when  the application is determined unless there are special reasons to the contrary. Indeed, Mr Cuff relies on the general rule that costs should follow the event.

[6]    I am satisfied that in respect of the privilege issue, the plaintiffs were the successful party.

[7]    In respect of the discovery issue, I note the plaintiffs wrote to the defendant on 15 August 2024 and again on 22 October 2024 raising issues with the adequacy of the defendant’s discovery. Mr Cuff submits this correspondence was not adequately responded  to,  or  responded  to  at  all,  leading  to  the  discovery  application  on   1 November 2024 resulting, as I have said, in a substantial number of further documents being discovered at the end of December 2024. To that extent, the application achieved some success.

1      Wakefield v Network Waitaki Ltd [2025] NZHC 656.

[8]    The plaintiffs success in respect of the hearing of the discovery issue was less marked. The outcome was that the defendant was ordered to provide an evidentiary affidavit confirming that it considered its discovery was complete and that it had no further documents to discover. This affidavit was required given the limited nature of a discovery affidavit discussed in the March judgment. Mr Hamilton, counsel for the defendant, submits such an affidavit had not been requested prior to the hearing.

[9]    Mr Hamilton also submits that the provision of further material by the defendant at the end of December 2024 should not be seen as an indicator of success. He submits that on 22 October 2024 when the plaintiffs sought further discovery of numerous categories of documents, they only gave seven working days’ notice for compliance.   Mr Hamilton  notes  the  plaintiffs  did  not  indicate  an  application for particular  discovery  would  be  filed  unless   a  response  was  received  by     31 October 2024. Undermining that point is that the defendant did not commit to provide the material sought in the 22 October 2024 letter within the timeframe given. Mr Hamilton further notes the defendant’s solicitors discovered the issue resulting in a substantial number of documents not being included in the initial discovery on      7 November 2024, and contacted the plaintiffs to advise that the error in the discovery process would be addressed.

[10]   Mr Hamilton submits that this is a case of mixed success and costs should lie where they fall.

[11]   Mr Hamilton submits the date issue resulting in the error in the defendant’s initial discovery already noted, would have been identified in any event through the defendant investigating the issues raised in the plaintiffs further discovery query of 22 October 2024, being the letter Mr Hamilton says gave an unreasonable deadline for a response. Mr Hamilton submits the defendant’s further discovery was provided pursuant to the defendant’s obligation under r 8.18(2) of the Rules, that is, its obligation to provide continuing discovery, not because of the application made by the plaintiffs.

[12]   Mr Hamilton submits that having received the supplementary discovery, it was open to the plaintiffs not to pursue their discovery application. This would have avoided the costs of preparing submissions and arguing those issues.

[13]I propose to deal with the matter in the following way.

[14]   There is an award of costs in favour of the plaintiffs on a 2B basis as claimed in the schedule to the plaintiffs’ memorandum dated 9 April 2025, with those costs being reduced as I set out below. I do not certify costs for second counsel. The adjustment is made to reflect that while the plaintiffs’ discovery application did result in further documents being provided, the plaintiffs application for further and better discovery did not succeed in the way sought by the plaintiffs at the hearing.

[15]   There is merit in Mr Hamilton’s submission that had the discovery application been withdrawn after the defendant provided its supplementary discovery in December 2024, the cost of submissions and of the appearance would have been reduced. The success obtained at the hearing on discovery issues had not been sought in the application, nor requested prior to the application being filed. I reduce the amount claimed in the schedule for the preparation of written submissions by half, and the appearance by half. As I am not allowing for second counsel, that means the total claimed (but for the above adjustment) would be 3.9 days. The above adjustments take out a further 1.25 days resulting in a total reduction of the claimable days of not quite one-third. Accordingly, that makes the 2B costs award 2.65 days x $2,390, being

$6,333.50, plus the disbursements of $565.22. A total award of $6,898.72. The adjustments I have made take a total of 1.75 days from the time allocation.

[16]Accordingly, the plaintiffs are awarded costs and disbursements on that basis.

Associate Judge Lester

Solicitors:

Wotton Kearney, Wellington (for Plaintiffs) Chapman Tripp, Christchurch (for Defendant)

SCHEDULE A

GARRY JOHN WAKEFIELD, FIONA JEAN WAKEFIELD and ELEANOR MARY SMART, as

trustees of the WAKEFIELD FAMILY TRUST Second Plaintiffs

FJ AND GJ WAKEFIELD FOREST PARTNERSHIP
Third Plaintiff

ERIC FREDERICK HENDRIK BREETVELT, MICHELLE PATRICIA BREETVELT, ABRAHAM KRIS BREETVELT and STANLEY KURT

BREETVELT
Fourth Plaintiffs

CAMPBELL ROBERT DYKES and LYNDA ELIZABETH GRAY

Fifth Plaintiffs

LYNDA ELIZABETH GRAY and I & C TRUSTEES

LIMITED, as trustees of the EVORA TRUST Sixth Plaintiffs

SALLY BRIGET HOLLOWAY and JEFFREY IRVIN HOLLOWAY

Seventh Plaintiffs

SALLY BRIGET HOLLOWAY, JEFFREY IRVIN HOLLOWAY and DOWNIE STEWART

TRUSTEE LIMITED, as trustees of the JEFF AND SALLY HOLLOWAY FAMILY TRUST
Eighth Plaintiffs

DAVID NEIL HONEYFIELD and JANETTE LOUISE WHELAN

Ninth Plaintiffs

MOLLY NAUGHTON
Tenth Plaintiff

ANNE ELIZABETH DENNIS, FRANK
EDGERTON DENNIS and MARINUS ANTONIUS

BAKX, as trustees of the LINDISBURN TRUST Eleventh Plaintiffs

BARBARA JOAN MACKAY and NORMAN PANTON McKAY

Twelfth Plaintiffs

MALCOLM DAVID McMILLAN

Thirteenth Plaintiff

PERPETUAL TRUST LIMITED and MALCOLM
DAVID McMILLAN, as trustees of the E. A. McMILLAN FAMILY TRUST
Fourteenth Plaintiffs

DAVID McMILLAN
Fifteenth Plaintiff

OHAU SNOW HOLDINGS LIMITED
Sixteenth Plaintiff

ANTHONY JOSEPH RYAN
Seventeenth Plaintiff

ANTHONY JOSEPH RYAN, JUDITH CATHERINE RYAN and A J & J C RYAN

TRUSTEES LIMITED, as trustees of the AJ & JC RYAN FAMILY TRUST
Eighteenth Plaintiffs

WILLEM ALEID CORNELIS SANDBERG and NAPIER INDEPENDENT TRUSTEES LIMITED, as
trustees of the SANDBERG TRUST, and TRACEY KELLY
Nineteenth Plaintiffs

WILLEM ALEID CORNELIS SANDBERG
Twentieth Plaintiff

STEPHEN CARL JOHN SIMMONS

Twenty-First Plaintiff

STEPHEN CARL JOHN SIMMONS and LINDA

SIMMONS, as trustees of THE BLUE GOLD TRUST

Twenty-Second Plaintiffs

DETECTION SERVICES LIMITED
Twenty-Third Plaintiff

VIVIENNE MARY SMITH-CAMPBELL
Twenty-Fourth Plaintiffs

VIVIENNE MARY SMITH-CAMPBELL and JOHN

LOUIS CAMPBELL, as trustees of the OHAU FAMILY TRUST

Twenty-Fifth Plaintiffs

VIVIENNE MARY SMITH-CAMPBELL and JOHN

LOUIS CAMPBELL, as trustees of THE INLANDS TRUST

Twenty-Sixth Plaintiffs

ROWENA SMITHIES and SIMON JOHN SMITHIES

Twenty-Seventh Plaintiffs

HUGH AYSON SPIERS and DWAYNE ARTHUR RENNIE

Twenty-Eighth Plaintiffs

CHRISTOPHER CHARLES SPIERS
Twenty-Ninth Plaintiff

CHRISTOPHER CHARLES SPIERS, LENA RAE SPIERS, HUGH AYSON SPIERS, JACQUELINE HELEN BANCROFT and GUY DOUGLAS

BANCROFT, as trustees of the SPIERS FAMILY TRUST

Thirtieth Plaintiffs

STANLEY JOHN DOWNEY SPIERS

Thirty-First Plaintiff

KARLA SCHMIDT

Thirty-Second Plaintiff

BRIAN WILLIAM TREVATHAN, LOIS TREVATHAN

Thirty-Third Plaintiffs

BRIAN WILLIAM TREVATHAN, LOIS
TREVATHAN and NEW ZEALAND TRUSTEE
SERVICE LIMITED, as trustees of the MARYBRAE TRUST
Third-Fourth Plaintiffs

BERNARD PIERRE WICHT and HELEN ELIZABETH McMAHON

Thirty-Fifth Plaintiffs

BERNARD PIERRE WICHT, EVAN JAMES

TAYLOR, as trustees of the B WICHT FAMILY
TRUST, and HELEN ELIZABETH McMAHON and

EVAN JAMES TAYLOR, as trustees of the H McMAHON FAMILY TRUST

Thirty-Sixth Plaintiffs

JOANNA RANDALL
Thirty-Seventh Plaintiff

LEWES JOHN BUTLER and ROBERT GLENDENNING BUTLER

Thirty-Eighth Plaintiffs

DESMOND ALLAN JELLYMAN and JUNE FOONG NGOR JELLYMAN

Thirty-Ninth Plaintiffs

JELLYMAN FAMILY TRUSTEE COMPANY LIMITED
Fortieth Plaintiff

IAN JOHN ADAMSON and NICOLA SARAH ADAMSON

Forty-First Plaintiffs

IAN JOHN ADAMSON, NICOLA
SARAH ADAMSON and BANCO TRUSTEES

LIMITED, as trustees of the ADAMSON FAMILY TRUST

Forty-Second Plaintiffs

LINDA MARIE ANDERSON and RENIER PASTORIZA FIGURACION

Forty-Third Plaintiffs

WARREN ANDERS BAKER and RACHEL ANNE BAKER

Forty-Fourth Plaintiffs

WARREN ANDERS BAKER and RACHEL ANNE

BAKER, as trustees of the WA & RA BAKER FAMILY TRUST

Forty-Fifth Plaintiffs

WILLIAM DANIEL BENNETT and SUSAN

MARGARET BENNETT, as trustees of the BENNETT FAMILY TRUST

Forty-Sixth Plaintiffs

CATHERINE MARY BOYLE

Forty-Seventh Plaintiff

BRYAN FREDERICK DAVIES
Forty-Eighth Plaintiff

BRENDAN MARTIN DURCAN, JACQUELINE MARGARET DURCAN and AORAKI TRUSTEES

CO (2013) LIMITED, as trustees of THE BALLYMOTE TRUST

Forty-Ninth Plaintiffs

ESTELLE LOUISE EASTON and ALAN GEORGE EASTON

Fiftieth Plaintiffs

PAUL JAMES EDMONDSTON
Fifty-First Plaintiff

GLEN MARY SKI CLUB INCORPORATED
Fifty-Second Plaintiff

VICTORIA KELLAND

Fifth-third Plaintiff

RODNEY BRIAN McLELLAN and RACHEL ANNE McLELLAN

Fifth-Fourth Plaintiffs

JANET MITCHELL
Fifty-Fifth Plaintiffs

ROOPALI JOHRI
Fifty-Sixth Plaintiff

ANDREW LONIE

Fifty-Seventh Plaintiff

STUART ROSS PATERSON and MICHELLE JANE PATERSON

Fifty-Eighth Plaintiffs

KATHERINE MARGARET POULSEN
Fifty-Ninth Plaintiff

WILLIAM HENRY SUTHERLAND
Sixtieth Plaintiff

JANE FRANCES SIMPSON and DAVID CRAIG OVENDEN

Sixty-First Plaintiffs

NATALIE MARTHA GOULD, SIMON GEORGE GOULD and BENJAMIN JAMES TAYLOR, as

trustees of the RED TREE TRUST Sixty-Second Plaintiff

JOHN FRASER
Sixty-Third Plaintiff

MARCUS WELLS
Sixty-Fourth Plaintiff

TARBIT BUILDING LIMITED
Sixty-Fifth Plaintiff

DAVID GREEN
Sixty-Sixth Plaintiff

PAUL WHEARTY and NICHOLA JANE WHEARTY

Sixty-Seventh Plaintiffs

NYREE JEAN SCHAAR and PIETER STEFANUS JOHANNES SCHAAR

Sixty-Eighth Plaintiffs

JOSHUA SCHAAR
Sixty-Ninth Plaintiff

GARY JOHN STICHBURY
Seventieth Plaintiff

GARY JOHN STICHBURY, JUDITH FRANCES STICHBURY and NAPIER INDEPENDENT

TRUSTEES LIMITED, as trustees of the GJ & JF STICHBURY FAMILY TRUST

Seventy-First Plaintiffs

CLARE WILLIAMS
Seventy-Second Plaintiff

VOODOO PROPERTY HOLDINGS LIMITED
Seventy-Third Plaintiff

ROSS GEORGE YEAGER
Seventy-Fourth Plaintiff

DAVID TALBOT HOWEY and JENNIFER CHRISTINE HOWEY

Seventy-Fifth Plaintiffs

JAMES ANTHONY MANSFIELD and ELIZABETH KATE MANSFIELD
Seventy-Sixth Plaintiffs

NEVILLE MAURICE LEWIS and LINDA JUNE LEWIS
Seventy-Seventh Plaintiffs

NEVILLE MAURICE LEWIS, LINDA JUNE LEWIS and RUSSELL TURNER LEWIS

TRUSTEES LIMITED, as trustees of the TOTARA-BEECH TRUST

Seventy-Eighth Plaintiffs

PAUL AUBREY
Seventy-Ninth Plaintiff

OLD STONE HUT FOREST LIMITED
Eightieth Plaintiff

VERITY FARMS NZ LIMITED
Eighty-First Plaintiff

SHARON FAE ENGLISH
Eight-Second Plaintiff

SHARON FAE ENGLISH and CAROLYN SUE
ENGLISH, as trustees of the ENGLISH FAMILY TRUST
Eighty-Third Plaintiffs

STEPHEN DWEIGHT MARK and JULIE MAI MARK

Eighty-Fourth Plaintiffs

STEPHEN DWIGHT MARK, JULIE MAI MARK

and CHRISTINE HELEN DARLING, as trustees of THE OSCAR TRUST

Eighty-Fifth Plaintiffs

BARRY JOHN FRANKLYN BIGGS and WENDY ELIZABETH BIGGS

Eighty-Sixth Plaintiffs

CATHERINE MARY MILLER
Eighty-Seven Plaintiff

ANNE-MARIE MILLER and SARAH LOUISE

MILLER, as trustees of the CM MILLER FAMILY TRUST
Eighty-Eighth Plaintiff

OHAU HOLIDAY HOMES LIMITED
Eighty-Nineth Plaintiff

MARIE BERNICE McAUGHTRIE and RICHARD NIGHTINGALE

Ninetieth Plaintiffs

DANIEL WILLIAM JOHNSTON and MJO

TRUSTEE COMPANY LIMITED, as trustees of the DJP SHARE TRUST

Ninety-First Plaintiff

DAVID FRASER RENDALL and MEGAN ELIZABETH JANE RENDALL
Ninety-Second Plaintiffs

JAMES ANTHONY CARNIE and NADIA MARIA

NORTON, as trustees of the OHAU TRUST Ninety-Third Plaintiffs

WILLIAM PATRICK CHISHOLM
Ninety-Fourth Plaintiff

MICHAEL TATTERSALL and PAULETTE TATTERSALL
Ninety-Fifth Plaintiffs

XU XU and YU WU

Ninety-Sixth Plaintiffs

FIVE RIVERS LIMITED
Ninety-Seventh Plaintiff

MAREE CAROLINE HORO, as trustee of the OHAU COMPANY TRUST

Ninety-Eighth Plaintiff

JANET ELIZABETH MUIR and RICHARD HANDLEY BROWN

Ninety-Ninth Plaintiffs

JANET ELIZABETH MUIR and RICHARD HANDLEY BROWN

One Hundredth Plaintiffs

AARON WAYNE GILMORE and SAINT PAULS

ASSET MANAGEMENT LIMITED, as trustees of THE MIGHTY ROCKET TRUST

One Hundred and First Plaintiffs

TIMOTHY HAROLD MUELLER
One Hundred and Second Plaintiff

PHILLIPPA WALTER
One Hundred and Third Plaintiff

KATHLEEN LAWSON and BRIAN GRAEME LAWSON
One Hundred and Fourth Plaintiffs

MARTIN JAMES HEAL
One Hundred and Fifth Plaintiff

ROGER MEE and ANNETTE MEE
One Hundred and Sixth Plaintiffs

ROBERT JAMES HALL, JOY MARGARET

ADELINE HALL, GDT NO.3 LIMITED, as trustees of THE HALL FAMILY TRUST, and ANNA

LOUISE DUNCAN and KATHERINE GAIL

DUNCAN, as trustees of the OHAU TRUST One Hundred and Seventh Plaintiffs

PHILIP DUNCAN
One Hundred and Eighth Plaintiff

EICHARD MICHAEL CONSTANT
One Hundred and Ninth Plaintiff

SARAH JANE LOVIE, NEVILLE SCHEIWE and

MARK JONATHAN TAVENDALE, as trustees of the JAMES SCHEIWE & SARAH LOVIE FAMILY

TRUST
One Hundred and Tenth Plaintiffs

JILLIAN ELIZABETH HEATH STONE and DAVID CHARLES STONE

One Hundred and Eleventh Plaintiffs

JILLIAN ELIZABETH HEATH STONE, DAVID CHARLES STONE and MAINLY TRUSTS

LIMITED, as trustee of the DJ TRUST One Hundred and Twelfth Plaintiff

DEBORAH LETHBRIDGE

One Hundred and Thirteenth Plaintiff

GENEVIEVE FRANCES BECROFT
One Hundred and Fourteenth Plaintiff

ROBIN ADRIAN FINNEY
One Hundred and Fifteenth

STEWART NEGUS
One Hundred and Sixteenth Plaintiff

DAVID LITTLETON
One Hundred and Seventeenth Plaintiff