AB Limited v UV Limited

[2024] NZHC 1901

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000583

[2024] NZHC 1901

BETWEEN

AB LIMITED as trustee of the CD Trust and EF Trust
First Plaintiffs

GH, IJ and KL as trustees of the MN Trust Second Plaintiffs

GH, and KL as trustees of the OP Trust Third Plaintiffs

GH and QR as trustees of the ST Trust Fourth Plaintiffs

AND

UV LIMITED

First Defendant

Continued overleaf

Hearing:

On the papers

Counsel:

J WS Baigent and L B Harrison for Plaintiffs in 583 proceeding A J Thorn for Plaintiffs in 1026 proceeding

W Akel and S T Coupe for Defendants in both proceedings

Judgment:

12 July 2024

COSTS JUDGMENT OF ANDERSON J

This judgment was delivered by me on 12 July 2024 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..

Registrar/Deputy Registrar

Solicitors:    Gilbert Walker, Auckland

Thorn Law, Auckland Simpson Grierson, Auckland

AB LTD v UV LTD [2024] NZHC 1901 [12 July 2024]

WX

Second Defendant

CIV-2023-404-001026

BETWEEN  A LIMITED

First Plaintiff

B, C and D Second Plaintiffs

E and F
Third Plaintiffs

AND  X

First Defendant

Y
Second Defendant

[1]    In these civil proceedings the plaintiffs allege negligence and make associated allegations against the defendants arising out of the collapse of the Penrich Global Macro Fund (Penrich Fund) in March 2020. The two proceedings have different plaintiffs but are being case managed together and are expected to be heard by the same Judge.1

[2]    This judgment addresses issues of costs arising out of my judgment dated 24 May 2024.2 In that judgment I addressed two applications. The first was an application by the plaintiffs in CIV-2023-404-1026 (1026 plaintiffs) for a declaration regarding an order of the District Court concerning name suppression. The second was an application by the defendants for civil suppression orders, applying Erceg v Erceg,3 in the event I concluded the District Court orders did not have the effect of suppression of the defendants’ names.

[3]    The plaintiffs in CIV-2023-404-583 (583 plaintiffs) successfully opposed the defendants’ application but made no application of their own. Those parties have not been able to agree costs on the defendants’ application. The defendants accept that the 583 plaintiffs are the successful party and are entitled to costs. However, they contest the quantum sought as over-stated for what they say is a straightforward interlocutory application.

[4]    The 583 plaintiffs seek costs of $18,091.25. The defendants say that $6,811.50 represents the correct assessment of costs which, with disbursements of $95.65 is a total of $6,907.15.

[5]    The issue of costs between the defendants and the 1026 plaintiffs relating to my judgment has been resolved. The plaintiffs in that proceeding sought (and it was agreed would receive) scale costs of $6,453.00 for opposing the defendants’ application. The defendants say this aligns with the defendants’ position.

[6]    The differences between the parties are the categorisation of the proceedings, the appropriate time for each step, and whether costs should be awarded in relation to certain steps.

1      See AB Ltd v UV Ltd HC Auckland CIV-2023-404-583, 3 July 2023 (Minute of Anderson J).

2      AB Ltd v UV Ltd [2024] NZHC 1324.

3      Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.

Categorisation

[7]    This proceeding is yet to be categorised for costs purposes. Rule 14.3 contemplates categorisation of the proceeding as a whole. That is, once a proceeding is categorised, generally that categorisation will apply to all steps in the proceeding.4 To the extent that any step in the proceeding may be more or less complicated, the appropriate way to recognise that is to adjust the time allowed for that step under the bands provided for in r 14.5 rather than changing the costs category.5 Only in unusual cases, where there is a significant discrepancy in the complexity of different claims, will it be open to the Judge in their discretion to partially re-characterise a proceeding.6

[8]    In advance of the first case management conference (which was adjourned on the basis of agreed directions as to next steps) the parties to this proceeding and the 1026 plaintiffs recorded that they agreed that the two proceedings are likely to be a Category 3 complex proceeding. Category 3 is applied to proceedings which, because of complexity or significance, require counsel to have special skill and experience in the High Court.7

[9]    The submissions on costs tended to engage on assessing the complexity of the particular application to which costs related (the defendants’ application for suppression of the proceeding). There is also debate on what I should make of the parties’ previous recorded position of a likely Category 3 assessment.

[10]   In my view, and in line with the preliminary assessment the parties themselves made, the two proceedings are appropriately categorised as Category 3 and I direct accordingly. That is due to the nature, significance and complexity of the proceeding. I observe that senior counsel have been engaged for the plaintiffs in the 1026 proceeding and for the defendants. An “application-based” approach to categorisation that features in the submissions is not appropriate.

4      Peters v Bennett [2020] NZHC 1734 at [28]; and Houghton v Saunders [2013] NZHC 3452 at [27].

5      Peters v Bennett, above n 4, at [45].

6      Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 at [127].

7      High Court Rules 2016, r 14.3(1).

Steps in the proceeding

[11]   The 583 plaintiffs seek band C costs for the preparation of written submissions and band B costs for other steps. The defendants submit that band B is appropriate for all steps. Band B applies where a normal amount of time is considered reasonable whereas band C applies where a comparatively large amount of time for the particular step is considered reasonable.8

[12]   I accept the defendants’ submission that there is nothing sufficiently complex about the issues or the 583 plaintiffs’ submissions in opposition to the civil suppression application which justifies a comparatively large amount of time. I direct that band B applies to all steps sought.

Allowance for certain steps

[13]   The 583 plaintiffs seek an allowance for costs for second counsel. I accept that the issue of suppression is of importance to the defendants and hence justified the plaintiffs also having two counsel. Moreover, in a Category 3 proceeding appearance of two counsel is usual. I certify for two counsel.

[14]   I allow costs for the step for the preparation of the joint memorandum directed at case managing the two applications. Whether allowance is appropriate will depend on the circumstances.9 Here, I am advised that it is the 583 plaintiffs that primarily held the pen.

[15]The resulting costs award is as set out in the attached schedule.

Anderson J

8      High Court Rules, r 14.5.

9      Compare Knight v Body Corporate 81340 [2020] NZHC 1594.

SCHEDULE

CIV-2023-404-583 — AB Ltd v UV Ltd

Scale costs and disbursements on interlocutory application regarding name suppression

Schedule of costs (on a Category 3 basis)

Item	Description	Date	Band	Time Allocation	Cost
11	Preparing and filing memorandum seeking directions	7 December 2023	B	0.4	$1,412.00
23	Filing opposition to interlocutory application	22 September 2023	B	0.6	$2,118.00
24	Preparation of written submissions	5 February 2024	B	1.5	$5,295.00
26	Appearance at hearing of defended application for sole or principal counsel - Hearing on suppression issues	12 February 2024	-	0.75	$2,647.50
27	Appearance at hearing - second counsel	12 February 2024	-	0.375	$1,323.75
Total	$12,796.25

Disbursements

Description	Cost
Filing fee: notice of opposition	$95.65
Total	$95.65

Total costs and disbursements