Mokau South Resources Limited v Gower HC Hamilton CIV 2011-419-1257 [2011] NZHC 1521 (10 November 2011)

Last Updated: 17 November 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CIV 2011-419-1257}

BETWEEN MOKAU SOUTH RESOURCES LIMITED

Plaintiff

AND GORDON ROBERT HOPEFUL GOWER AND GEORGE ALEXANDER HOPEFUL GOWER

Defendant

Hearing: On the papers

Counsel: RO Parmenter for plaintiff

SA McKenna for defendants

Judgment: 10 November 2011 at 10:00 AM

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors: Daniel Overton & Goulding, PO Box 13 017, Onehunga

Forgeson Law, PO Box 403, Te Kuiti 3941

MOKAU SOUTH RESOURCES LIMITED V GOWER HC HAM CIV 2011-419-1257 10 November 2011

[1] The plaintiff issued this proceeding and sought a permanent injunction to enforce the provisions of a deed by way of summary judgment.

[2] Counsel conferred before the first call of this proceeding and helpfully filed a joint memorandum. The result was that the claim for damages that was additional to the primary relief sought in the statement of claim was abandoned and a permanent injunction was agreed upon. A joint memorandum was filed and I made an order granting the permanent injunction. The matter was dealt with on the papers. No appearances were necessary.

[3] The only outstanding matter is costs. The plaintiff seeks an order for costs based on Category 2 Band B which is confined to the preparation and filing and service of the proceedings and the preparation of the joint memorandum that I have referred to.

[4] Counsel for the defendants takes issue with the categorisation of the proceeding and the band allowance sought by the plaintiff.

[5] The plaintiff’s counsel has confirmed to me that, for the purposes of r 14.2(f) of the High Court Rules, an award of costs based on 2B would not exceed the costs that the plaintiff has incurred in bringing this proceeding.

The principles applicable in awarding costs

[6] Rule 14.1 gives the Court a discretion to order costs in relation to a step taken in a proceeding. That discretion is generally to be exercised in accordance with the specific rules contained in rr 14.2-14.10: Glaister v Amalgamated Dairies Ltd.[1] In Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd[2] the Court of Appeal said of the costs regime contained in what is now

_{rr 14.2-14.10 that:}

there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary

The test to be applied is entirely an objective and not a subjective one. The only reference which it is necessary to make towards actual costs is to be found in r 14.2(f), namely that an award of costs should not exceed the costs incurred by the party claiming the costs: Glaister v Amalgamated Dairies Ltd.[3]

[7] Rule 14.2 lists the principles applying to determination of costs. Subrule (a) affirms the principle that the losing party should pay the costs to the successful party. Subrule (b) requires that the costs reflect the complexity and significance of the proceedings and refers specifically, therefore, to the categorisation of a proceeding which is provided for in r 14.3. Subrule (c) requires a consideration of each step for which costs are sought and an application of the daily rate having regard to the appropriate band which is to be applied after a consideration of r 14.5(2) and the Third Schedule to the High Court Rules.

[8] Rule 14.2(c) requires that costs be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the interlocutory application. Rule 14.5 then provides the mechanism for determining the reasonable time by reference to the appropriate Bands which are set out in Schedule 3. In this case, what I am required to do is to select whether Band A or Band B should apply. Band A applies if a comparatively small amount of time was considered reasonable. Band B applies if a normal amount of time is considered reasonable.

[9] I deal firstly with the categorisation of costs in terms of r 14.3. I do not accept the defendants’ submission. In my view, this proceeding and the relief sought justify a Category 2 designation for this proceeding. The proceedings are proceedings of average complexity requiring counsel of skill and experience

_{considered average in the High Court.}

[10] The next step in the inquiry is to determine the appropriate Band in respect of the items referred to in the Third Schedule to the High Court Rules and in accordance with r 14.5. Item 1 in Schedule 3 makes allowance for:

Commencement of proceedings by plaintiff (receiving instructions, researching facts and law and preparing, filing and serving statement of claim and notice of proceeding or equivalent or originating application).

Under Band A the allowance is 1.6 days. Under Band B the allowance is three days. This matter was not as straightforward as the defendants’ counsel has submitted. It would require a consideration of the founding deed, the actions taken by the parties, some research on the law to settle the form of pleadings and then the drafting of the pleadings. In those circumstances I do not consider that Band A is sufficient. In my view, Band B is the appropriate allowance.

[11] The next item that requires consideration is Item 5.1 in Schedule 3. A Band A allowance is based on .3 of a day and a Band B allowance is based on .6 of a day. In this case most of the work was done in accordance with the allowance under Item 1. It is for that reason that I consider the appropriate allowance for the preparation and filing of the summary judgment application and supporting affidavits is properly met by a Band A allowance.

[12] No appearances were necessary. A joint memorandum was required, however, and that should not be taken into account. I note that the memorandum was prepared by counsel by counsel for the defendants. On that basis I make no separate allowance for this item so far as the plaintiff’s costs are concerned.

[13] The above analysis leads to a position, having regard to Schedule 2 and the Category 2 designation and the items allowed for under Schedule 3 that I have referred to, of a cost order of $6,204.

Decision

[14] I order that the defendants pay the plaintiff ’s costs of $6,204 together with

_{disbursements as fixed by the Registrar.}

_{JA Faire}
Associate Judge

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[1] _{Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 at [19].}
[2] Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd [2002] NZCA 277; (2002) 16 PRNZ 662 at 668).

[3] Glaister v Amalgamated Dairies Ltd, above n 1 at 610 [14].