TRANSACTOR TECHNOLOGIES LTD & ANOR V MARKETSMART INTERNATIONAL (NZ) LTD & ORS HC AK CIV-2008-404-008469

TRANSACTOR TECHNOLOGIES LTD & ANOR V MARKETSMART INTERNATIONAL (NZ) LTD & ORS HC AK CIV-2008-404-008469

The court allocated 60% of pre-9 February 2009 costs to MarketSmart NZ (reflecting Evolution's involvement) and 75% of non-party costs to Mr Harper to reflect contributions by other non-parties; held execution costs for search orders recoverable under Schedule 3 para 10.4; allowed second counsel only for the ex parte search/preservation hearing and the costs application hearing; excluded additional PwC invoice of NZD 19,282.61 and flat service charges but allowed recoverable specific disbursement items (photocopying at NZD 0.25/page and other substantiated costs); and awarded MarketSmart Pty 2B scale costs up to 24 August 2009, a 50% uplift thereafter, reduced by 50% for joint...

Citation
openlaw-c9ac88f2_0929_426c_87a5_90ea9555befb.pdf
Parties
First Applicant: Transactor Technologies Ltd; Second Applicant: Loyalty Applications NZ Limited; First Respondent: MarketSmart International (NZ) Limited; Second Respondent: Paul Gregory Harper; Third Respondent: Peter Kingsley Abotomey; Fourth Respondent: OnCard International Limited; Fifth Respondent: MarketSmart International Pty Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 May 2010
Procedural Posture
Civil Litigation Costs and Non Party Costs Applications / Judgment on Costs Calculation
Outcome
Judgment calculating and allocating costs as specified; some disbursements excluded; MarketSmart Pty awarded scaled and uplifted costs subject to reduction for joint representation
Legal Topics
Costs Allocation, Non Party Costs, Search/anton Piller Orders, Disbursements, Second Counsel
Civil Procedure Costs Intellectual Property Company Law/insolvency Costs Allocation Non Party Costs Search/anton Piller Orders Disbursements +1 more

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Parties

Transactor Technologies Ltd

First Applicant

Loyalty Applications NZ Limited

Second Applicant

MarketSmart International (NZ) Limited

First Respondent

Paul Gregory Harper

Second Respondent

Peter Kingsley Abotomey

Third Respondent

OnCard International Limited

Fourth Respondent

MarketSmart International Pty Limited

Fifth Respondent

Procedural Posture

Civil Litigation Costs and Non Party Costs Applications / Judgment on Costs Calculation

Legal Issues

  1. 1 Whether 2B scale costs against a non-party should be pro-rated to reflect other parties' involvement
  2. 2 Whether costs of executing interlocutory search orders are recoverable
  3. 3 Whether costs for second counsel at interlocutory hearings are recoverable

Ratio Decidendi

The court allocated 60% of pre-9 February 2009 costs to MarketSmart NZ (reflecting Evolution's involvement) and 75% of non-party costs to Mr Harper to reflect contributions by other non-parties; held execution costs for search orders recoverable under Schedule 3 para 10.4; allowed second counsel only for the ex parte search/preservation hearing and the costs application hearing; excluded additional PwC invoice of NZD 19,282.61 and flat service charges but allowed recoverable specific disbursement items (photocopying at NZD 0.25/page and other substantiated costs); and awarded MarketSmart Pty 2B scale costs up to 24 August 2009, a 50% uplift thereafter, reduced by 50% for joint...

Court Disposition

Judgment calculating and allocating costs as specified; some disbursements excluded; MarketSmart Pty awarded scaled and uplifted costs subject to reduction for joint representation

Orders

  • Allocate costs and disbursements up to 9 February 2009 between Evolution and MarketSmart NZ with MarketSmart NZ to pay 60% in relation to Mr Harper's 2B award
  • Allocate costs awarded against non-parties so Mr Harper bears 75% to reflect involvement of MarketSmart Pty, OnCard Limited and Mr Abotomey