Royale Biotech Group Limited v Hi Globe International Trading Limited

[2021] NZHC 2441

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1080

[2021] NZHC 2441

UNDER

the Copyright Act 1994

BETWEEN

ROYALE BIOTECH GROUP LIMITED

Plaintiff

AND

HI GLOBE INTERNATIONAL TRADING LIMITED

Defendant

Hearing:	On the papers
Counsel:	No appearance for the plaintiff JRE Wach for the defendant
Judgment:	17 September 2021

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 17 September 2021 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
James & Wells Solicitors – Auckland Branch

ROYALE BIOTECH GROUP LTD v HI GLOBE INTERNATIONAL TRADING LTD - Costs [2021] NZHC

2441 [17 September 2021]

[1]    My 23 August 2021 judgment, striking out Royale Biotech’s claims as an abuse of process and declaring its proceeding abandoned, awarded costs to Hi Globe and reserved their quantification.1

[2]    Hi Globe now seeks costs in the amount of $59,167.74, comprising 2B scale costs of $21,988.00 to the end of May 2021, during which Royale Biotech last took any step in this proceeding, and indemnity costs in the amount of $35,549.74 (including GST) thereafter (plus $1,620 disbursements). Royale Biotech makes no response.

[3]    Given my finding Royale Biotech’s abuse of process was to “use [this] proceeding effectively to prevent release of the bottles to Hi Globe”,2 its conduct meets the statutory threshold for indemnity costs.3 It was “distinctly bad behaviour”,4 constituting the “flagrant” or “very unreasonable” misconduct threshold for consideration of indemnity costs.5 Assuming Hi Globe to be GST-registered, GST is not recoverable.6

[4]I therefore order Royale Biotech pay Hi Globe costs in the amount of

$54,309.50 (comprised by 2B scale costs of $21,988.00 and indemnity costs in the amount of $30,912.80 (plus $1,408.70 disbursements)).

—Jagose J

1      Royale Biotech Group Ltd v Hi Globe International Trading Ltd [2021] NZHC 2176 at [13]–[14].

2 At [8].

3      High Court Rules 2016, r 14.6(4).

4      Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA) at [26].

5      Prebble v Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [6]; and Flujo Holdings Pty Ltd v Merisant Co Inc [2018] NZCA 226 at [34].

6      New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016) 27 NZTC 22-058 at [17]. See also High Court Fees Regulations 2013, reg 24.