Tracplus Global Limited v V2Track (2022) Limited

[2022] NZHC 1788

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2022-419-143

[2022] NZHC 1788

BETWEEN

TRACPLUS GLOBAL LIMITED

First Plaintiff

TRACPLUS AUSTRALIA PTY LIMITED
Second Plaintiff

TRACPLUS USA, INC.
Third Plaintiff

AND

V2TRACK (2022) LIMITED

First Defendant

BEVAN DIPROSE
Second Defendant

KYLAN DIPROSE

Third Defendant

On the papers

Counsel:

P J Napier for the plaintiffs

L J Walker and O C Gascoigne for the defendants

Judgment:

25 July 2022

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 25 July 2022 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

TRACPLUS GLOBAL LIMITED v V2TRACK (2022) LIMITED [2022] NZHC 1788 [25 July 2022]

[1]    The parties have been unable to agree costs following my judgment dated     1 July 2022. Memoranda have been filed.

[2]    The parties agree that the proceeding is category 2 for costs purposes (in terms of r 14.3 of the High Court Rules 2016). There is a dispute as to some of the items for which the plaintiffs should have costs and the costs band for some of those items. Finally, the plaintiffs seek increased costs, which the defendants resist.

[3]    The first item in dispute is a claim by the plaintiffs for costs on a band B basis for filing a memorandum for mention in the Duty Judge list (item 11). The defendants’ costs memorandum does not accept this claim, though it does not explicitly address it. I am satisfied that the plaintiffs should have costs for this item.

[4]    The plaintiffs seek costs on a band C basis for filing the interlocutory application for an interim injunction (item 22) and for preparation of written submissions for the hearing of the application (item 24). The plaintiffs say, in support of their claim for band C, that to pursue the application a substantial volume of documents had to be reviewed and prepared and six witnesses had to be briefed, including one overseas witness. The plaintiffs say that the evidence involved technical matters. They say this had to be set out carefully in the affidavits and in submissions.

[5]    The defendants say that  the  application  was of  average  complexity, with no features justifying a significant expenditure of time. The defendants also note that much of the content of the plaintiffs’ affidavit was not relevant to my determination of the application, or that it related to matters in respect of which the plaintiffs ultimately did not seek orders at the hearing.

[6]    In my view, band C is appropriate for the filing of the interlocutory application. I consider that, as is common in applications for interim injunctions, which usually have  to  be  prepared  under  urgency,  a  comparatively  large  amount  of  time   was reasonable for preparation of the affidavits in support. The affidavits addressed  a range of topics. They dealt with, and explained, many technical matters. They did all of this with commendable clarity.

[7]    I reach this view notwithstanding that some of the material in the affidavits was not  relevant  to  the  determination  of  the  application.     It  is  not  uncommon     or unreasonable that, when preparing materials for an interim injunction under urgency, matters are included within an affidavit that ultimately (in particular, after seeing the affidavits in opposition) fall to one side.

[8]    In concluding that band C is appropriate on this step, I also take into account that some of the material in the affidavits addressed orders that the plaintiffs did not seek at the hearing. I regard this point as neutral, as the reason the plaintiffs did not seek those orders was that they were able to build a workaround in the meantime. It is not necessary to determine whether the plaintiffs might have succeeded in obtaining the orders if they had not achieved the workaround.

[9]    As to written submissions, band B is appropriate. The written submissions were concise. They did not have to elaborate on the matters that had already been well set out in the affidavits.

[10]   The plaintiffs seek costs for second counsel at the hearing. The defendants resist this, saying that second counsel should be allowed for in a category 2 case only if it has some exceptional feature.1 I consider that urgent interlocutory applications, at least where they involve technical matters (as in this case), are exceptional. This is reflected in the defendants also having two counsel at the hearing. Accordingly, I allow for second counsel.

[11]   The plaintiffs seek a 50 per cent uplift on costs for the above items. They put forward two distinct bases for this.

[12]   First, the plaintiffs say that band C costs still do not reflect a reasonable time for the steps taken. The plaintiffs rely on r 14.6(3)(a): “the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C”. This basis for increased costs can only be applicable only to any item for which I have found band C to otherwise

1      The defendants rely on Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2017] NZHC 1599, (2017) 23 PRNZ 484.

be appropriate, which in this case is item 22 (filing the interlocutory application). Rule 14.6(3)(a) focuses solely on the time of the step. Band C allows two days for this step. I agree that the preparation of the application and affidavits for this proceeding would require substantially more than two days. I allow three days.

[13]   Secondly, the plaintiffs say that the defendants’ opposition to the application was unreasonable and lacked merit. The defendants reject this claim. The defendants also say that the legal basis upon which the plaintiffs advanced their case was flawed and that the plaintiffs failed to respond to an offer made by the defendants. They say these should lead to a reduction in costs.

[14]   I do not accept that the defendants’ opposition lacked merit. Success by one party does not equate to lack of merit by the other. Equally, I do not accept that the plaintiffs’ engagement, or lack of engagement, with the defendants’ offer justifies any reduction in costs.

[15]I therefore conclude that the defendants should pay costs for the following:

(a)Memorandum for mention in Duty Judge list (2B, 0.4 days): $956.

(b)Appearance in Duty Judge list (2B, 0.2 days): $478.

(c)Filing interlocutory application (3 days): $7,170.

(d)Preparation of written submissions (2B, 1.5 days): $3,585.

(e)Appearance at hearing for principal counsel (0.5 days): $1,195.

(f)Appearance at hearing for second counsel: $597.50.

[16] These total $13,981.50.

[17]   The plaintiffs also claim disbursements of  $464.82.   The defendants take   no issue with that.

[18]   Accordingly, I order that the defendants are to pay to the plaintiffs costs      of $13,981.50 and disbursements of $464.82, a total of $14,446.32.

Campbell J