Nestle New Zealand Limited v Mars New Zealand Limited [2014] NZHC 2369 (26 September 2014)

Last Updated: 28 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-001351 [2014] NZHC 2369

UNDER	the Fair Trading Act 1986, sections 9, 10, 13, 41 and 43
BETWEEN	NESTLE NEW ZEALAND LIMITED Plaintiff
AND	MARS NEW ZEALAND LIMITED Defendant

On the papers
Judgment:	26 September 2014

JUDGMENT OF ANDREWS J [Costs]

This judgment is delivered by me on 26 September 2014 at 4.45pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

NESTLE NEW ZEALAND LTD v MARS NEW ZEALAND LTD (Costs) [2014] NZHC 2369 [26 September

2014]

[1] In my judgment of 6 August 2014 I dismissed the plaintiff’s application for summary judgment against the defendant, and its application for an interim injunction.¹ At [37] I said:

Both parties sought costs in the event that they succeeded. My provisional view is that costs should therefore follow the event. If the parties are not able to agree as to the quantum of costs payable then memoranda may be submitted. I would anticipated then making an order on the papers.

[2] Both parties have submitted memoranda.

[3] Before summarising the parties’ submissions, it is relevant to record that the plaintiff has appealed against my refusal to grant summary judgment, and my provisional view that costs should follow the event. By consent, the proceeding is stayed pending delivery of the judgment of the Court of Appeal.

[4] The defendant submits that I should fix costs, and seeks costs on a 2B basis ($7,611.75), together with an uplift of $2,500 on the basis that it prepared for and successfully defended two applications, not one, raising different issues, in that the application for an interim injunction required evidence and submissions as to the balance of convenience.

[5] The plaintiff submits that costs should be reserved, it submits that no costs decision is required from this Court because if its appeal is successful, costs orders are likely to be granted in favour of the plaintiff in both the Court of Appeal and High Court. It further submits that there is no prejudice to either party in costs being reserved, if the appeal is unsuccessful, costs can then be determined.

[6] Further, the plaintiff submits that the default position in relation to applications for summary judgment is that costs are generally reserved, and are assessed and awarded after the conclusion of the substantive hearing. That position should apply in the present case, as there is no suggestion of an abuse of process in seeking summary judgment. Further, the plaintiff submits that the application for an interim injunction turned on the balance of convenience and that, in such

_{circumstances, the issue of costs should be reserved.}

¹ Nestle New Zealand Ltd v Mars New Zealand Ltd [2014] NZHC 1837.

[7] I accept that, in summary judgment cases, the general position is that costs will be reserved, pending the outcome of the substantive proceeding. “Follow the event” is determined according to the outcome of the substantive proceeding.² I also note the authority cited for the plaintiff in support of its submission that costs on an unsuccessful interim injunction application may be reserved when the outcome turns on the balance of convenience.³

[8] In the circumstances, notwithstanding that both parties in fact sought costs at

the hearing, I conclude that costs on the plaintiff’s unsuccessful applications for

_{summary judgment and an interim injunction should be reserved.}

_{Andrews J}

² _{See NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).}

³ See Gibbston Downs Wines v Perpetual Trust Ltd HC Christchurch CIV-2010-409-1716,

6 October 2010.