Icon Central Limited v Collingwood HC Auckland CIV-2008-404-007424 [2011] NZHC 573 (15 June 2011)

Last Updated: 22 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2008-404-007424}

BETWEEN ICON CENTRAL LIMITED Plaintiff

AND COLLINGWOOD & ORS Defendants

Counsel: B O'Callaghan and J Puah for Plaintiff

P Dale and D Grove for Defendants

Judgment: 15 June 2011 at 3:00 PM (On the papers)

_{COSTS JUDGMENT OF VENNING J}

This judgment was delivered by me on 15 June 2011 at 3 pm, pursuant to Rule 11.5 of the High Court

Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Ellis Law, Auckland

Carter & Partners, Auckland

Copy to: P J Dale/D W Grove, Auckland

ICON CENTRAL LIMITED V COLLINGWOOD & ORS HC AK CIV-2008-404-007424 15 June 2011

[1] The judgment of 9 December 2009 refers. The parties have been unable to resolve the issue of costs. The principal difference between the parties is the categorisation of the proceedings and the appropriate time band.

[2] The defendants also note that no evidence was called in the Icon proceedings except for the joint valuation insolvency experts.

[3] The Icon proceedings were just as significant to the developer as the other proceedings (Hickman & Ors v Turner & Waverley Limited & Ors CIV-2008-404-

005871 and Icon Central Limited v Collingwood & Ors CIV-2008-404-007424) were. This costs judgment should be read with the costs judgments in those proceedings delivered today. In a way, the fact the developer was the plaintiff in the present proceedings, made it more difficult tactically. Category 3 is appropriate.

[4] Further, I accept that, as in the other proceedings, band 3 is the appropriate time band.

Disbursements

[5] The defendants’ challenge a number of the disbursements claimed. They take issue with the claims for taxis to and from the High Court, the Trans Legal Service fee for the service of subpoenas and Paragon Investigation Services’ fees for obtaining contact details for potential witnesses. These latter challenges are on the basis the plaintiff chose not to call the witnesses.

[6] I decline the claim for the taxi to and from the High Court as not being an expense that would ordinarily be charged for separately from professional legal services. I note a similar claim was declined by Fogarty J in Mawhinney v Waitakere City Council.[1]

[7] In relation to the claim for the fees for service of subpoenas and investigative services, counsel explained that the fees related to agents’ services to obtain the

contact details of potential witnesses once the witnesses were identified in the particulars and witness statements. Seventeen witnesses or potential witnesses were contacted. Counsel submits that in some cases what they had to say added to the plaintiffs’ case and, even if not called, the inquiry was reasonable. Many were subpoenaed to give evidence and hence the claim for the fee for subpoenas issued.

[8] I accept that those costs would ordinarily be charged separately from professional legal services. They were specific to the conduct of the proceeding and in the circumstances were reasonably necessary for the conduct of the proceeding and reasonable in amount. I approve them.

[9] The plaintiff is to have costs in the sum of $247,665 together with disbursements of $35,352.28, in total $283,017.28.

[10] The costs award is against the first, second, third, eighth, 10th, 14th, 15th, 16th,

₂₀th _{and 24}th _{defendants jointly and severally.}

Venning J

---

[1] Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-001805, 26 September 2007 at [13].