TE TUMU MIERE LTD (IN LIQ) v ZEALANDE LTD [2019] NZHC 106

TE TUMU MIERE LTD (IN LIQ) v ZEALANDE LTD [2019] NZHC 106 [8 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2018-404-2883[2019] NZHC 106BETWEEN TE TUMU MIERE LIMITED(IN LIQUIDATION)PlaintiffAND ZEALANDE LIMITEDDefendantHearing: On the papersAppearances: B J Burt and T J Cooley for the plaintiffB D Gustafson and G R Grant for the defendantJudgment: 8 February 2019JUDGMENT OF JAGOSE J[Costs]This judgment is delivered by me on 8 February 2019 at 10 ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:James Burt, Barrister, AucklandBrookfields, Auckland (T J Cooley)Bret Gustafson, Barrister, AucklandRainey Law, Auckland (G R Grant)[1] My judgment of 4 January 2019 at [32] took the preliminary view, as thesuccessful party in resisting TTM's application for interim injunctions, Zelande wasentitled to 2B costs. That was because, from what I then knew of it, nothing in thesteps taken by Zelande in this averagely complex proceeding required other than anormal amount of time.[2] That is largely accepted, amounting to 2B costs in the sum of $7,916.50, plus$168.30 in disbursements. But Zelande says that is not the case for two steps – draftingthe notice of opposition and six affidavits in support, and preparation of writtensubmissions for the hearing on 4 January 2019 – for which it says "a comparativelylarge amount of time" was required, thus engaging band C. And it seeks a 50% uplifton grounds of TTM's contended "unnecessary and misguided" proceeding and urgentinjunctive relief. Finally, disbursements are sought for deponents' travel costs incurredin preparing and swearing their affidavits and in attending the hearing.[3] Given the breadth of interlocutory applications' subject matter, the amount oftime that is to be considered reasonable varies hugely between applications. Therequisite comparator for diversion from 'normal' is difficult to establish. 'Normal' isa reference to the amount of time, and not the timing of the application during theCourt's vacation.[4] Responsive opposition to factually intense contentions in pursuit of interiminjunctions reasonably may consume a larger amount of time than opposingapplications for other than interim injunctions. On reflection, I accept that was the casehere, although Zelande's opposition was not exceptional in the context of interlocutoryinjunction applications. However, it was not reasonable for preparation of the writtensubmissions to require a comparatively large amount of time: the grounds foropposition are well-understood and required relatively little exposition. I will allowZelande 2C costs for step 23 only.[5] Particularly given the general principle costs should be predictable andexpeditious, I see no basis to award increased costs. In circumstances of Zelande'sretention of TTM's property, some interlocutory step was inevitable, and I am notprepared critically to distinguish between the injunction application as was sought andother interlocutory relief. Neither am I prepared to have regard for the parties' failedcommercial negotiations to such ends, which would not have settled or disposed ofproceedings between them.[6] Last, the deponents' fuel costs do not constitute a disbursement in terms ofRule 14.12. They are not allowed.[7] I order TTM to pay Zeland 2B costs for its steps in the proceeding for all butstep 23, which is to be calculated at 2C, plus allowable disbursements.—Jagose J