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]…

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.

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Details

Case: [2025] NZHC 1124
Decision Date: 12 May 2025

CaseChat Overview and Summary

The plaintiffs, including Garry John Wakefield and Fiona Jean Wakefield, along with numerous other plaintiffs, were engaged in a legal dispute against Network Waitaki Limited. The case, Wakefield v Network Waitaki Limited, was heard in the High Court of New Zealand, Christchurch Registry. The plaintiffs sought costs related to a previous judgment from 26 March 2025, focusing on two main issues: the plaintiffs' application for further and better discovery, and the plaintiffs' challenge to a claim for privilege by the defendant. The plaintiffs had partial success on both issues. While the discovery application resulted in the provision of additional documents, it did not achieve the full success they sought at the hearing. On the privilege issue, however, the plaintiffs were successful.

The legal issues the court had to decide revolved around the allocation of costs in relation to the interlocutory application. The plaintiffs argued that they were the successful party and, therefore, costs should follow the event. They cited the High Court Rules 2016, which state that costs should follow the event unless there are special reasons to the contrary. The defendant, on the other hand, argued that the case was one of mixed success and that the costs should lie where they fall. They pointed out that the additional documents provided by the defendant were a result of their obligation to provide continuing discovery, rather than due to the plaintiffs' application. They also argued that the plaintiffs could have avoided costs by not pursuing the application after the supplementary discovery was provided.

The court determined that the plaintiffs were successful in respect of the privilege issue, and had some success in respect of the discovery issue. However, the success in the discovery issue was less marked as the plaintiffs had not sought the outcome they achieved at the hearing. The court awarded costs to the plaintiffs on a 2B basis, but reduced the amount claimed to reflect that the discovery application did not succeed in the way sought by the plaintiffs at the hearing. The total award of costs and disbursements was $6,898.72.

The plaintiffs were awarded costs and disbursements in the amount of $6,898.72. This decision was based on the court's determination that the plaintiffs were successful in respect of the privilege issue, and had some success in respect of the discovery issue. The award was reduced to reflect that the success achieved at the hearing on the discovery issue was not sought in the application, nor requested prior to the application being filed.

Orders