POLPERRO CORPORATION LIMITED V INTERNATIONAL MARINE SERVICES LIMITED HC AK CIV-2006-404-2390

POLPERRO CORPORATION LIMITED V INTERNATIONAL MARINE SERVICES LIMITED HC AK CIV- 2006-404-2390 20 August 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2006-404-2390IN THE MATTER OF the Companies Act 1993 BETWEEN POLPERRO CORPORATION LIMITED Plaintiff AND INTERNATIONAL MARINE SERVICES LIMITED Defendant Hearing: 21 and 26 June 2007 Appearances: Mr D Hughes and Ms S Stead for plaintiff Mr J Shaw for defendant Judgment: 20 August 2007 at 5 p.m.JUDGMENT OF ASSOCIATE JUDGE DOOGUE [On Costs]This judgment was delivered by me on20.08.07 at 5 p.m, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateCounsel: Sarah-Lee Stead/Daniel Hughes, Kensington Swan, Private Bag 92101, Auckland Mr J Shaw, International Marine Services Ltd, 6 Jellicoe Street, Viaduct Harbour, Auckland[1] The plaintiff made an application for further and better discovery of documents. It sought further and better discovery in eight different categories. It was only partially successful. I directed further and better discovery in the first and third categories but not the others. The plaintiff now seeks costs. The defendant cross applies for costs. [2] So far as the plaintiff's application is concerned, the fact that it was successful in two categories lends some weak support to its application for costs. On the other hand, some of its applications did not get off the ground. For example the plaintiff sought discovery of documents relating to an entity called "Networkmarine Group". That entity did not appear to have anything whatsoever to do with the present proceedings and an application relating to documents germane to that entity should never have been filed. [3] I accept that its not just a matter of counting up the number of categories to see in how many cases the plaintiff succeeded and how many it failed. [4] In this case broadly equivalent time was required to argue each category in Court and, presumably, to develop submissions prior to Court relating to those categories. Much of the attention at the hearing and in the submissions was on categories in which the plaintiff was ultimately unsuccessful. [5] So far as the defendant's claim is concerned, while no order was made against it in most of the categories, its submissions on matters of confidentiality were largely beside the point.Principles[6] The correct approach to costs awards where one party has been partially successful was discussed in Packing In Ltd (In Liq) v Chilcott (2003) 16 PRNZ 869,a case concerned with the award of costs where an application for orders setting aside liquidators' notices was only partially successful. It is of some assistance in the present circumstances. Tipping J in that case said:[5] In a case such as the present, where in broad terms each party has had similar success, we do not consider it helpful to focus too closely on the question which party has failed and which has succeeded. Costs in a case such as this should rather be based on the premise that approximately equal success and failure attended the efforts of both sides. To that starting point should be added issues such as how much time was spent on each transaction or group of transactions in issue, and any other matters which can reasonably be said to bear on the Court's ultimate discretion on the subject of costs. In the end, as in all costs matters, the Court must endeavour to do justice to both sides, bearing in mind all material features of the case.[7] My conclusion is that it would not be just to make an order for costs either in favour of the plaintiff or the defendant in this case. I therefore decline both applications. _____________ J.P. Doogue Associate Judge