Twentieth Century Fox Film Corporation v Dotcom

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001272 [2014] NZHC 2565

UNDER Part 32 of the High Court Rules 2009

BETWEEN

TWENTIETH CENTURY FOX FILM CORPORATION, DISNEY ENTERPRISES INC, PARAMOUNT PICTURES CORPORATION, UNIVERSAL CITY STUDIOS PRODUCTIONS LLP and WARNER BROS ENTERTAINMENT INC Applicants

AND

KIM DOTCOM First Respondent

BRAM VAN DER KOLK Second Respondent

RSV HOLDINGS LIMITED Third Respondent

Judgment: 21 October 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 21 October 2014 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

TWENTIETH CENTURY FOX FILM CORPORATION & ORS v DOTCOM & ORS [2014] NZHC 2565 [21
October 2014]

[1] In May 2014 the applicants filed an originating application for freezing and ancillary orders in respect of Mr Dotcom’s assets. Although not urgent at the time of filing it became urgent within a few weeks and the applicants sought interim relief in the form of ancillary orders requiring Mr Dotcom to disclose the nature and extent of his assets.1 I granted costs to the applicants on the application for ancillary orders and Mr Dotcom’s unsuccessful application for a stay of execution on a 2C basis. I declined to make an order for the reimbursement of the expert witness fees rendered by Mr Rotstein but invited a further memorandum and evidence addressing the issue
of reasonableness that Mr Dotcom’s counsel had raised.

[2] I now have further memoranda from counsel, together with another affidavit filed on behalf of the applicants explaining the invoices rendered by Mr Rotstein. Mr Dotcom still resists reimbursement of the figures on the basis that the evidence related to both the substantive application and the application for ancillary orders and resisting the application for stay of execution. Ms Walker submitted that only 25 per cent of the costs should be payable at this point. I do not accept that submission. It is artificial. The application for the ancillary orders relied on the evidence in its totality.

[3] I am satisfied that the applicants are entitled to reimbursement of Mr Rotstein’s costs, namely US$15,901.802 and US$17,347.053 totalling US$33,248.85. When the applicants first sought reimbursement of these figures they converted to NZ$40,106.13. In her most recent memorandum Ms Walker, for Mr Dotcom, does not take any issue with that conversion and I therefore direct reimbursement of those figures.

[4] Ms Walker submits, further, that the applicants should not be entitled to costs for the initial steps of filing the application and affidavit in support and preparation for the first case management conference. I do not accept that submission. The originating application contained the application for ancillary orders which
subsequently fell to be heard urgently. However, I accept that the first two steps

1      Twentieth Century Fox Film Corporation & Ors v Dotcom [2014] NZHC 1789.
2      Invoice 311812M.
3      Invoice 313531.

ought not be calculated on a 2C basis but rather on a 2B basis. I will leave counsel

to confer regarding the calculation of those costs.

P Courtney J

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case involving several major American film corporations, including Twentieth Century Fox Film Corporation, Disney Enterprises Inc, Paramount Pictures Corporation, Universal City Studios Productions LLP, and Warner Bros Entertainment Inc, who brought proceedings against Kim Dotcom, Bram van der Kolk, and RSV Holdings Limited. The applicants sought freezing and ancillary orders in relation to Dotcom's assets, with the case becoming urgent shortly after filing. The court was tasked with determining whether the applicants were entitled to reimbursement for expert witness fees, specifically those rendered by Mr. Rotstein, as well as costs associated with the initial steps of the proceedings.

The legal issues before the court included whether the applicants were entitled to reimbursement of Mr. Rotstein's fees and whether the costs for the initial steps of the proceedings should be calculated on a 2C or 2B basis. The applicants argued that they should be reimbursed for the full amount of Mr. Rotstein's fees, while Dotcom's counsel contended that only a fraction of the costs should be payable at that stage. Additionally, Dotcom's counsel argued that the initial steps of the proceedings should not attract costs on a 2C basis.

The court held that the applicants were entitled to reimbursement for the full amount of Mr. Rotstein's fees, amounting to US$33,248.85. The court rejected the argument that only a fraction of the costs should be payable, stating that the application for ancillary orders relied on the evidence in its entirety. The court also determined that the initial steps of the proceedings should not be calculated on a 2C basis but rather on a 2B basis, leaving the calculation of these costs to be conferred upon by counsel.

The court's decision ensures that the applicants receive reimbursement for the expert witness fees, while also clarifying the appropriate basis for calculating costs associated with the initial steps of the proceedings. This outcome provides clarity and certainty for the parties involved in the litigation, ensuring that the applicants are fairly compensated for the services rendered while also maintaining a balanced approach to the allocation of costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established