RED STAG TIMBER LTD v JUKEN NEW ZEALAND LTD [2021] NZHC 3584

RED STAG TIMBER LTD v JUKEN NEW ZEALAND LTD [2021] NZHC 3584 [21 December 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2753[2021] NZHC 3584BETWEEN RED STAG TIMBER LIMITEDPlaintiffAND JUKEN NEW ZEALAND LIMITEDDefendantHearing: On the papersAppearances: N F Flanagan and C M Fleming for the PlaintiffC L Bryant and G J Luen for the DefendantJudgment: 21 December 2021JUDGMENT OF GAULT J(Costs)This judgment was delivered by me on 21 December 2021 at 2:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors/ Counsel:Mr N F Flanagan and Ms C M Fleming, Meredith Connell, AucklandMr A R Galbraith QC (defendant's instructed counsel), Barrister, AucklandMs C L Bryant and Ms G J Luen, Hesketh Henry, Auckland[1] Following my judgment on various interlocutory applications dated 6 October2021,1 the parties have been unable to reach agreement on costs. Red Stag Timber Ltd(Red Stag) seeks 2B costs on the applications by Juken New Zealand Ltd (JNL) forstrike out and summary judgment, and on Red Stag's discovery application, reducedby the amount of costs on Red Stag's application for a more explicit pleading.To allow for JNL's success, Red Stag claims for only one interlocutory application andone opposition, and 85 per cent of the hearing and preparation costs, which it says isthe amount of hearing and preparation time spent on JNL's applications, resulting incosts totalling $16,479.60.[2] JNL submits that costs should lie where they fall.Discussion[3] My judgment stated that each party had some success.2 JNL applied for strikeout, leave to bring summary judgment and summary judgment (in an omnibusapplication dated 4 December 2020). Leave to seek summary judgment was granted,but the substantive applications were dismissed.[4] Red Stag applied for orders for particular discovery (dated 21 October 2020)and for a more explicit pleading (dated 23 December 2020). There was mixed successon the discovery application. Red Stag's application for a more explicit pleading wasdismissed.[5] Dealing first with strike out, Red Stag said that JNL required leave. WhileI decided otherwise, I do not treat this as a separate unsuccessful application. At most,it was an unnecessary distraction from the substance of the strike out application.But I do not consider it warrants a reduction in scale costs on the strike out application.[6] As for the summary judgment application, Red Stag accepts that JNL had somesuccess in that leave to apply for summary judgment was granted. This warrants amodest reduction of 10 per cent.1 Red Stag Timber Ltd v Juken New Zealand Ltd [2021] NZHC 2662.2 At [125].[7] Turning to Red Stag's application for a more explicit pleading, JNL is entitledto costs.[8] In relation to Red Stag's discovery application, the parties characterise theoutcome differently. Red Stag submits I largely granted the application finding thateight out of ten categories of documents were discoverable, whereas JNL saysRed Stag was largely unsuccessful, noting JNL had always acknowledged it wouldneed to undertake further discovery if it did not succeed in striking out the newpleading and referring to my statement that, but for the need to carry out furtherdiscovery to address the more recent pleading since the strike out application had notsucceeded, I would have declined to order a further affidavit of documents.3[9] Red Stag succeeded in that I concluded that some (but not all) categories ofdocuments (at least in part) were relevant, and a further affidavit was appropriate giventhe need to update the discovery in light of the amended pleading. But as well as notsucceeding in relation to relevance on some grounds, Red Stag did not succeed inhaving JNL's claims for confidentiality and privilege set aside as sought, albeit withleave reserved in limited respects. I consider the mixed success is such that Red Stagis entitled to reduced costs of 50 per cent on the discovery application.[10] It makes practical sense to treat the strike out and summary judgmentapplications as two separate applications for the purposes of the allowance for filingopposition even though the opposition was in a single document, and to offset JNL'ssuccessful opposition to the pleading application. Together with the 50 per centallowance for the discovery application and the 10 per cent reduction on the summaryjudgment application, Red Stag is entitled to 0.84 days.4 I consider the same approachshould be adopted for submissions, that is Red Stag is entitled to 2.1 days,5 plus0.3 days (50 per cent) for preparation of the bundle. At the appropriate 2B category,this totals 3.24 days x $2,390 = $7,743.60.3 Red Stag Timber Ltd v Juken New Zealand Ltd [2021] NZHC 2662 at [112].4 0.6 – 0.06 + 0.3 days.5 1.5 – 0.15 + 0.75 days.[11] In relation to hearing time, apportionment is appropriate. However, 85 per centis more than the amount of hearing time spent on JNL's applications. JNL'sapplications were addressed on the first day of the hearing and Red Stag's on thesecond (albeit shorter) day. Allowing for overlap, I treat the hearing time occupied as:(a) summary judgment 0.5 days(b) strike out 0.5 days(c) discovery 0.5 days (x 50 per cent)(d) pleading (offset) 0.25 days[12] Therefore, Red Stag is entitled to one day for appearance plus 0.5 days forsecond counsel,6 totalling 1.5 days x $2,390 = $3,585.[13] In aggregate, Red Stag is entitled to costs of $11,328.60.[14] I allow disbursements as claimed but offset the filing fee for JNL's notice ofopposition on the pleading application.Result[15] Red Stag is entitled to costs of $11,328.60 plus disbursements of $500, totalling$11,828.60.________________________________Gault J6 Items 26 and 27.