West Harbour Holdings Limited v Waipareira Investments Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5801 [2013] NZHC 713

BETWEEN WEST HARBOUR HOLDINGS LIMITED Plaintiff

ANDWAIPAREIRA INVESTMENTS LIMITED First Defendant

ANDMARINA RESORT LIMITED Defendant

Hearing: (on the papers)

Counsel: R E Harrison QC for the Plaintiff
P J Dale for the Defendants

Judgment: 10 April 2013

JUDGMENT OF WOODHOUSE J

(Costs on application for summary judgment and other orders)

This judgment was delivered by me on 10 April 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Counsel:
Mr R E Harrison QC, Barrister, Auckland
Mr P J Dale, Barrister, Auckland
Instructing Solicitors:
Mr G Atmore (for the plaintiff), Atmore & Co., Solicitors, Auckland
Mr D Morrison (for the defendants), Grove Darlow & Partners, Solicitors, Auckland

WEST HARBOUR HOLDINGS LIMITED V WAIPAREIRA INVESTMENTS LIMITED HC AK CIV-2011-
404-5801 [10 April 2013]

[1] The first defendant seeks costs following the judgment dated 11 July 2012.[1]

Costs are sought on a 3C basis. Costs on a 3C basis are opposed by the plaintiff. Mr

Harrison QC submits that a 2B assessment is appropriate.

[1] West Harbour Holdings Ltd v Waipareira Investments Ltd [2012] NZHC 1645.

[2] In respect of category 3 Mr Dale, for the first defendant applicant, simply submitted that the complexity or significance of the proceeding requires counsel “to have special skill and experience in the High Court”. I agree with Mr Harrison’s submission that this proceeding comes within the category 2 definition in r 14.3: “Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court”. The question of the appropriate category was considered in the separate application by the first defendant for security for
costs.[2] Venning J concluded, for that purpose, that category 2 was the appropriate

category. I therefore agree with that assessment for the purpose of fixing costs on the interlocutory applications I am dealing with.

[2] West Harbour Holdings Ltd v Waipareira Investments Ltd [2012] NZHC 3188.

[3] In respect of the application for category C for the time allocation Mr Dale referred to the volume of material filed, including the length of submissions, and the length of the judgment. Mr Harrison submitted that “reliance on the bulk and volume of affidavits filed and on the page count is very much a blunt instrument”. I agree with that submission, although I did not read Mr Dale’s submission as being confined simply to such matters.

[4] Mr Harrison also submitted that the first defendant had not provided any relevant information in support of the band C claims for two of the three items claimed – filing a notice of opposition (item 23) and preparation of written submissions (item 24). However, an assessment of the time considered reasonable for each step, in terms of r 14.2(c) can be made by the Court. My assessment in this
regard is as follows:

(a) Filing a notice of opposition. The allowance under band C, as claimed, is 2 days. Under band B it is 0.6 days. Band B is appropriate for the notice of opposition.

(b)Preparation of written submissions. The allowance and claim under band C is 3 days. The allowance for band B is 1.5 days. I consider the claim under band C of 3 days is reasonable and that claim is allowed.

(c) Appearance at the hearing. This, of course, is based on the actual time engaged of 1.5 days and is to be assessed at the category 2 rate.

[5] The application for Waipareira included a set off in favour of West Harbour

for costs incurred by West Harbour on West Harbour’s application in September

2011 which was resolved by the provision of undertakings. There is no issue of principle in this regard. Accordingly, those costs are to be assessed on a category 2 basis. The three items noted in Mr Dale’s memorandum would all appear to be
appropriately assessed under band B.

Woodhouse J

In the matter of West Harbour Holdings Limited versus Waipareira Investments Limited and Marina Resort Limited, the court dealt with an application for costs following the judgment issued on 11 July 2012. The first defendant, Waipareira Investments Limited, sought costs on a 3C basis, which was opposed by the plaintiff. The primary legal issue was determining the appropriate category for the assessment of costs under the High Court Rules 1985, specifically whether the proceeding fell under category 2 or category 3, and the appropriate time allocation for specific tasks under bands B and C.

The court considered the submissions of counsel and concluded that the proceeding was of average complexity, thereby falling under category 2 as defined in rule 14.3. This conclusion aligned with the earlier assessment made by Venning J for the purpose of fixing security for costs. The court also examined the submissions regarding the time allocation for specific tasks, such as the filing of a notice of opposition and the preparation of written submissions. It was noted that reliance on the volume of material filed and page counts was a blunt instrument for assessing time allocation. The court assessed the reasonableness of the time claimed for each task, finding that while some claims were appropriate under band C, others were better suited to band B.

The court allowed the claims for certain tasks under band C while disallowing others under the same band, opting instead for band B. The court also addressed the set-off of costs incurred by West Harbour on its application in September 2011, which were to be assessed on a category 2 basis. The final orders were made in line with the court's assessment, ensuring that the costs were allocated appropriately based on the complexity and specific tasks involved in the proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established