CAMERON v EVEREST CENTRAL INVESTMENTS LIMITED [2019] NZHC 2750

CAMERON v EVEREST CENTRAL INVESTMENTS LIMITED [2019] NZHC 2750 [29 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-1890[2019] NZHC 2750BETWEEN GRAEME JOHN WESTBROOKCAMERON AND JAMES PHILLIPTURNBULL as trustees of THE WHITBYTRUST AND WHITBYCO LIMITEDApplicantsAND EVEREST CENTRAL INVESTMENTSLIMITEDRespondentHearing: On the papersCounsel: T J G Allan for ApplicantsJ McBride and F Lupis for RespondentJudgment: 29 October 2019COSTS JUDGMENT OF WHATA JThis judgment was delivered by me on 29 October 2019at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Grove Darlow & Parnters, AucklandGreen Roche, Auckland[1] I have before me an application for costs. In my substantive judgment, I foundthat the case for the injunction had not been made out. I further found that while theclaim from the Whitby Trust (Whitby) was on its face a difficult one, I did not agreewith counsel for Everest that it was so weak it ought not to have been brought. Iallowed for submissions but indicated that my view was costs on a 2B scale anddisbursements in Everest's favour would be sufficient.[2] Everest seeks costs on a 2C basis totalling $19,478.50. Everest submits thatBand C sets out the appropriate time allocations for the substantive steps taken inopposition to the application, namely:(a) the four substantive affidavits Everest filed in opposition to theapplication, including two expert witness affidavits and a planner;(b) the "very novel" approach taken to succession in the legal claim whichrequired detailed submissions; and(c) the concerted and substantial amount of effort required in preparing theopposition, given the potential impact the interim orders might havehad.[3] Everest therefore submits it is self-evident that the application required morethan the normal amount of preparation for a standard on notice interlocutoryapplication, and that the award of costs should reflect the complexity and significanceof the proceeding.[4] Everest also seeks disbursements for the reasonable costs of its expertwitnesses, totalling $9,570. Everest submits that the invoices of both experts are fullyrecoverable, as both charged the usual rate for an expert of their reputation andexperience, in relation to an urgent and significant proceeding, and their work wasspecific to the proceeding.[5] Whitby submits that costs should follow the event in the ordinary way and thatEverest should be awarded costs on a 2B basis. In response to Everest's argumentsfor scale 2C costs, Whitby submits that the Court as a matter of course awards costson a 2B basis and there is nothing in the opposition to this particular application thatwarrants a 2C award. Whitby disputes Everest's claims that Band C is appropriate foreach step as follows:(a) Filing memorandum for first or subsequent case managementconference or mentions hearing (step 11): this comprised three pages,and was utterly unremarkable in the circumstances, requiring nothingmore than average complexity per r 14.3.(b) Filing opposition to interlocutory application (step 23): Whitbyacknowledges the evidence filed in opposition to the application wascomprehensive and required a short timeframe – but it is not unusualfor an interim injunction to be heard in a short timeframe and, ifanything, this indicates a normal amount of time was spent inpreparation. Moreover, Whitby submits the evidence of the planner(Mr Warren) was not "expert" or reasonably necessary, because he wasa witness of fact and not an expert. Whitby says this is becauseMr Warren had worked with Mr Kumar for many years and lacked theindependence that expert witnesses generally display. Whitby alsosubmits that as it did not call evidence from a planner, Mr Warren'sevidence was not reasonably necessary.(c) Preparation of written submissions (step 24): Everest's submissionscomprise 17 pages for a half-day hearing, and although an argumentwas described as "novel", nothing in the arguments required more thana "normal" amount of preparation, particularly given the limitedtimeframe.(d) Preparation of bundle for hearing (step 25): there was no obligation orexpectation on Everest to prepare a bundle, and it was not so large orcumbersome that it would have taken a "comparatively large" time toprepare.(e) Second and subsequent counsel if allowed by court (step 27): nospecific basis has been put forward by Everest to justify seeking secondcounsel approval. Everest's second counsel did not separately addressthe Court, nor did the case cover a particularly wide range of issues orrequire a significant burden of document management. Costs forsecond counsel are not warranted in the circumstances.[6] Whitby also objects to the invoice pertaining to Mr Warren being claimed as adisbursement as, again, it submits Mr Warren was not an expert and his evidence wasnot necessary. Whitby therefore submits that costs on a 2B basis in the sum of $8,920are appropriate.[7] In my view, the proceeding was not so complex or time-consuming to justifythe application of Band C. In saying this, I mean no criticism of counsel in terms ofthe actual effort. This was not a simple case and plainly it was a matter of someimportance to the respondent. But essentially for the reasons stated by Mr Allan, thiswas not a matter of such difficulty as to attract Band C categorisation. I do, however,consider that Mr Warren's evidence was reasonably necessary and substantiallyhelpful, as it served to provide the full consenting and planning matrix for me.[8] I am therefore satisfied that Everest should be awarded costs on a 2B basis,with disbursements, including Mr Warren's invoice.