Bartle Group Limited t/a Ace Towing and Heavy Haulage v New Zealand Transport Agency

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-378

[2019] NZHC 1828

BETWEEN
BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE

Plaintiff

AND

THE NEW ZEALAND TRANSPORT AGENCY

Defendant

On the papers

Counsel:
P A Morten for Plaintiff

K Muirhead for Defendant T Mijatov for Intervener

Judgment:

27 September 2019

JUDGMENT OF GRICE J

(Costs)

[1] The New Zealand Transport Agency (the Agency) has applied for costs in relation to a successful interlocutory application allowing the police to intervene in the present proceedings.1

[2] In an interlocutory matter costs should be fixed and they usually follow the event.2 Nevertheless, the Court has a discretion.3

[3] In this case Bartle Group argues that the discretion should be exercised to refuse or reduce any costs award for three main reasons:

1      Bartle Group Ltd v The New Zealand Transport Agency [2019] NZHC 2168.
2      High Court Rules 2016, r 14.2(1)(a).
3      Rule 14.1.
BARTLE GROUP LIMITED trading as ACE TOWING AND HEAVY HAULAGE v THE NEW ZEALAND TRANSPORT AGENCY [2019] NZHC 1828 [27 September 2019]

(a)The substantive declaratory matter, involving regulations in relation to heavy trucks, is a matter of public interest which has wide application.4

(b)The application allowing the police to intervene was an indulgence from the Court. In such cases, a condition of the granting leave to intervene is often (as it was here) that the intervener cannot claim costs. Typically, it is the intervener themselves that apply to be joined to a proceeding. Here, the Agency applied. If the police had brought the application, as is normally the case, it would likely not be entitled to costs.

(c)As the proceedings were initiated in Wellington there was no reason why counsel for the Agency could not have been local. That would therefore exclude disbursements claimed associated with counsel travelling to Wellington for the hearing.

[4] On the other hand, the Agency points to early notice being given that an application for intervention would be made. In particular, he points to the Minute of Dobson J who granted leave for such an application.5 It also says the application was necessary as the police may render assistance to the Court that it could not provide. In addition, it says the sensible and most cost effective way to proceed, given that Bartle was seeking the matter be dealt with urgently, was for the Agency to deal with questions of service and joinder in one application. It says Bartle could have agreed to the joinder in any event.

[5] I do not attach much weight to the argument that this is a “public interest” matter. While other parties may always benefit from any declaration that the Court might make each case here is likely to be fact specific. I do not consider there is a high degree of public interest involved. It is primarily the parties involved who will benefit from any declaration although there may be some wider application.

4 Rule 14.7(e) and (g).
5 Bartle Group Ltd v the New Zealand Transport Agency HC Wellington CIV-2019-485-378, 16 July 2019 (Minute).

[6] I am of the view costs should be awarded to the Agency. An application for joinder is, to a certain extent, an indulgence but the application was signalled early and I have found that police submissions may well assist the Court. The interlocutory application was therefore successful. I consider the Agency should not be denied costs because it, and not the police, took carriage of the application. It was an efficient way to approach it for the reasons put forward by the Agency.

[7] I also accept the Agency’s submissions that it was more cost effective for counsel to travel from Auckland for the hearing than to brief local counsel. They also needed to travel the night before to avoid possible delays to the hearing due to travel problems.

[8] Taking a holistic approach, and recognising a discount is appropriate to recognise the application is an indulgence, I consider a 30 per cent discount on 2B costs is appropriate.

[9]Accordingly, costs in favour of the Agency are awarded:

(a)Assessed on the basis of 2B costs discounted by 30 per cent.

(b)Disbursements for travel and accommodation are allowed.

Grice J

In the case of Bartle Group Limited trading as Ace Towing and Heavy Haulage versus the New Zealand Transport Agency, the court was required to determine the appropriate amount of costs to be awarded to the New Zealand Transport Agency following a successful interlocutory application that allowed the police to intervene in the proceedings. The plaintiff, Bartle Group Limited, argued that the court should exercise its discretion to either refuse or reduce the costs awarded to the Agency for several reasons, including the public interest nature of the case, the indulgence nature of the application for intervention, and the potential for local counsel to be used instead of travel expenses for the Agency's counsel. The Agency, on the other hand, argued that the application was necessary and efficient, and that the costs incurred for the travel of their counsel were reasonable and necessary.

The court considered the arguments from both sides and found that while the application for intervention was, to some extent, an indulgence, it was also necessary and successful. The court also found that the Agency's decision to have their counsel travel from Auckland to Wellington was more cost-effective than briefing local counsel and that the early notice of the application for intervention was appropriate. The court concluded that a 30% discount on the 2B costs was appropriate to recognise the indulgence nature of the application, but that the Agency was entitled to be awarded costs. The court also allowed the disbursements for travel and accommodation.

In conclusion, the court awarded costs in favour of the New Zealand Transport Agency, assessed on the basis of 2B costs discounted by 30%, and allowed disbursements for travel and accommodation. The plaintiff's arguments for a reduction or refusal of costs were not successful, and the court found that the Agency's application for intervention was necessary and efficient, and that the costs incurred were reasonable and necessary. This case highlights the court's discretion in awarding costs in interlocutory matters and the factors that the court may consider in exercising that discretion.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established