POLLADIO HOLDINGS LTD v THE NEW INDIA ASSURANCE CO LTD [2023] NZHC 1346

POLLADIO HOLDINGS LTD v THE NEW INDIA ASSURANCE CO LTD [2023] NZHC 1346 [31 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-476-000030[2023] NZHC 1346BETWEEN POLLADIO HOLDINGS LIMITEDPlaintiffAND THE NEW INDIA ASSURANCECOMPANY LIMITEDDefendantHearing: On the papersJudgment: 31 May 2023JUDGMENT OF WYLIE J[Costs]This judgment was delivered by Justice WylieOn 31 May 2023 at 2.00 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:T C Gunn, Warkworth/M C Josephson, MangawhaiKeegan Alexander, AucklandIntroduction[1] I refer to my judgment of 12 May 2023.1 I there found that the roof of the hotelwas damaged in the course of a hail storm in Timaru on 20 November 2019, that thehail damage to the roof of the hotel constituted accidental loss, but that the plaintiff,Polladio Holdings Ltd's (Polladio) losses were excluded by various clauses in thepolicy. I also found that Polladio had breached other clauses in the policy and that thedefendant company, the New India Assurance Co Ltd (New India), was entitled todecline to pay the claim, even if the same had not been excluded by the terms of thepolicy. I noted that New India was the successful party and that it was entitled to itsreasonable costs and disbursements.[2] For some reason, the judgment did not promptly find its way to New India. Asa result, it did not file its claim for costs and disbursements within the timelines fixedby me. Nor were counsel able to confer.[3] New India seeks costs on a 2B basis, in the total sum of $46,366, together withdisbursements of $10,965,30. Included in these costs are the costs of second counseland New India seeks certification in that regard.[4] Polladio seeks to address two issues raised in New India's claim for costs.First, it notes that New India's affidavit of documents contained only 14 documentsand that only one of them was unique. The others were reproductions of Polladio'sown documents. On that basis, it is asserted that the amount claimed for discovery—$4,780—is unreasonable. Further, it is asserted that there should be no allowance forsecond counsel.[5] Notwithstanding that my judgment did not envisage the filing of amemorandum in reply, New India has done so. It seeks to defend its claim to theamount sought for discovery and asserts that second counsel was necessary given thenature of the proceedings.1 Polladio Holdings Ltd v The New India Assurance Co Ltd [2023] NZHC 1147.Analysis[6] All matters in relation to costs are at the discretion of the Court.2 The discretionis not however unfettered. It is qualified by the applicable costs rules and by principlesadopted in various established authorities.3[7] Here, New India was the successful party and there is no dispute that it isentitled to its costs and disbursements. It seeks costs and disbursements on a 2B basis.I am satisfied that costs should be fixed on this basis. A normal amount of timeconsidered reasonable would have been required in relation to the proceedings andthey were of average complexity, requiring counsel of skill and experience consideredaverage in the High Court. There does not appear to be any error in most of the mattersdealt with in the schedule prepared by New India, but an issue has arisen in relation toitem 20. New India claims $4,780 for the preparation of a list of documents ondiscovery. It claims for two and a half days at $2,390 per day.[8] There is no dispute that the affidavit of documents lists only 14 documents.All but one were reproductions of Polladio's own documents. I agree with Polladiothat the amount claimed is excessive. Rule 14.2(1)(f) limits an award of costs to costsincurred by the party claiming the same. I accept that counsel for New India wasrequired to prepare the affidavit of documents but I cannot see that this task wouldhave taken two and a half days. In my judgment, the actual time taken would havebeen half a day, justifying an award of costs of $1,195.[9] Nor can I see that second counsel was necessary. The matters raised by theproceedings were relatively straightforward. The briefs of evidence were notextensive. There were relatively few documents in issue. Accordingly, I decline tocertify for second counsel.2 High Court Rules 2016, r 14.1.3 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and[16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28];Mansfield Drycleaners Ltd v Quinny's Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002)16 PRNZ 662 at [27]; Kinney v Pardington [2021] NZCA 174 at [1].[10] For the reasons I have set out, I award costs in favour of New India and againstPolladio, in the sum of $39,196.00. I award disbursements against Polladio and infavour of New India in the sum of $10,965.30.____________________________Wylie J