MATSUOKA v POLLAK [2020] NZHC 58

MATSUOKA v POLLAK [2020] NZHC 58 [4 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-001935[2020] NZHC 58BETWEEN JOHN TAKASHI MATSUOKAApplicantAND GARRY MICHAEL POLLAKRespondentHearing: (On the papers)Counsel: M W O'Brien for the ApplicantC M Meechan QC for the RespondentJudgment: 4 February 2020[COSTS] JUDGMENT OF MOORE JThis judgment was delivered by me on 4 February 2020 at 10:00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] Mr Matsuoka brought a claim for contempt of Court against Mr Pollak by wayof originating application. Mr Pollak applied to have the proceedings struck-out. Igranted Mr Pollak's application.1[2] Mr Pollak sought indemnity costs. In a costs judgment dated 5 November2019, I held that Mr Pollak was entitled to the indemnity costs he sought.2 As to thequantum of costs to be awarded, I said:"[27] Indemnity costs are not calculated on the basis of the costs rules, butrather on the basis of a reasonable allocation of actual costs having regard tothe appropriate time taken, the significance and complexity of the work, anda median hourly rate reasonably applicable. The Court must satisfy itself thatthe costs incurred were "reasonably incurred"[28] Mr Pollak has provided the Court with various invoices, which totalthe claimed actual and reasonable costs... But, as Mr O'Brien rightly pointsout, the invoices themselves are almost entirely redacted. The Court istherefore unable to assess the reasonableness of the claimed costs."(Citations omitted)[3] I directed Mr Pollak file a further memorandum, with appropriate attachments,providing the Court with such information as would enable it to assess whether thecosts claimed were reasonable. He has now done so.[4] I have reviewed the information provided and concluded that Mr Pollak'sactual costs and disbursements, amounting to $63,624.77, were reasonably incurred.The strike-out application was part of a much larger and varied series of disparateproceedings initiated by Mr Matsuoka. In the circumstances, Mr Pollak's retention ofsenior counsel was not unreasonable. Nor was the rate charged by that senior counselout of the ordinary.Discussion[5] Mr Matsuoka filed a memorandum raising a number of issues with thereasonableness of the costs incurred by Mr Pollak. I will deal with them briefly.1 Matsuoka v Pollak [2018] NZHC 3292, [2019] NZAR 246.2 Matsuoka v Pollak [2019] NZHC 2875.[6] First, Mr Matsuoka complains that Mr Pollak seeks costs on costs. He saysthis should not be allowed. I disagree. Costs on costs are not so unusual asMr Matsuoka suggests.3 And as I noted in the costs judgment, Mr Pollak wascompletely entitled to reject Mr Matsuoka's offer to pay scale costs, causing him toincur further expense on various costs memoranda.4 I see no reason why he shouldhave to shoulder the burden of this additional expense.[7] Second, Mr Matsuoka points out that the costs claimed by Mr Pollak areinclusive of GST. That is because Mr Pollak says he is not GST-registered. ButMr Matsuoka says the onus is on Mr Pollak to prove this. He cites the Court ofAppeal's decision in New Zealand Venue and Event Management Ltd v Worldwide NZLLC in support.5 There the Court said:"[16] As when awarding increased costs, the Court will proceed on the basisthat the successful party is GST–registered and entitled to a GST input credit.Accordingly, a party that is not able to recover GST should inform the Courtso that this may be taken into account. This basis ensures double recovery isavoided and puts the onus on the successful party to inform the Court of itsinability to recover GST if it wants fully to recover its costs."[8] I do not read those comments of the Court of Appeal as imposing a requirementon Mr Pollak to provide the Court with hard evidence that he is not GST-registered.The Court of Appeal simply says that a party should "inform" the Court that they arenot able to recover GST. Mr Pollak has done so. I am satisfied that requiring anymore of him would be unreasonable in the circumstances and anathema to the swiftdetermination of costs in this matter.[9] Thirdly, Mr Matsuoka attempts to relitigate a matter already determined in thecosts judgment: that is, the apparent payment of Mr Pollak's legal expenses by hisinsurer. I say no more about that matter, having already directed Mr Matsuoka not toaddress matters of liability in his memorandum to the Court. In any case, whateverprivate arrangements Mr Pollak has in respect of his legal costs is beyond my purview.3 See for example Griffin Trust AG v Global Oil Services Ltd [2019] NZHC 3418 at [35].4 At [25].5 New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016)23 PRNZ 260.Result[10] I order Mr Matsuoka to pay Mr Pollak the following amounts:(a) $62,989.78 in costs; and(b) $634.99 in disbursements.Moore JSolicitors:Mr O'Brien, AucklandMs Meechan QC, Auckland