Acernus Aero Limited v Vincent Aviation Limited

[2012] NZHC 1621

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-113 [2012] NZHC 1621

BETWEEN  ACERNUS AERO LIMITED Plaintiff

ANDVINCENT AVIATION LIMITED Defendant

Hearing:         On the papers

Judgment:      10 July 2012

COSTS JUDGMENT OF CLIFFORD J

Introduction

[1]      This  matter  first  came  before  me  on  13  February  2012  in  the  Judge’s Chambers List.  My minute of that date refers.  At that point in time, Mr Toebes and Mr Scragg  were  confident  they would  be  able  to  resolve  matters  between  their clients sufficiently for the application by Mr Toebes’ client, Acernus Aero, for an interim  injunction  to be withdrawn.   At  that  point  I provided for a hearing on Thursday 16 February 2012 limited to the question of the workman’s lien claimed by Vincent Aviation.

[2]      Vincent Aviation subsequently withdrew their claim for a workman’s lien. Notwithstanding that, and without leave from the Court, Mr Toebes filed a renewed application for interim orders, pending the hearing of his client’s application for interim relief.  On Thursday 16 February 2012 I declined Acernus Aero’s application for “interim” interim relief that it be kept on Vincent Aviation’s air operator certificate.  Effectively by consent, I made an order providing for the hangaring of

the aircraft in question.

ACERNUS AERO LTD v VINCENT AVIATION LTD (Costs) HC WN CIV-2012-485-113 [10 July 2012]

[3]      I subsequently heard the application for interim relief on 27 February.  In a judgment of 29 February I declined that application.   I said I saw no reason why costs should not follow the event.

[4]      Vincent Aviation has now applied for increased and indemnity costs.  It seeks increased  costs  (scale  2B  plus  50  per  cent)  for  all  steps  in  respect  of Vincent Aviation’s proceeding to date.   Further, it seeks indemnity costs in respect of the steps taken for the hearing on 16 February.

[5]      Given the terms upon which I provided for the hearing on 16 February, I consider increased, but not indemnity, costs for that hearing are appropriate.  As I noted at the time, Mr Toebes effectively enlarged that hearing without leave of the Court.  Moreover, given that Acernus had by then offered to hangar the aircraft on an interim basis, the matter should not have been required to be brought to Court in the way it was.

[6]      In terms of the hearing on 29 February 2012, Vincent succeeded.  I do not, however, regard the nature of its success or Acernus’ claim as such to give rise to an award of increased or indemnity costs.  Rather, I consider scale costs are appropriate.

[7]      On  that  basis  there  will  be  scale  costs  to  date  as  calculated  by Vincent Aviation in Annexure A of its memorandum as to costs, together with increased costs (scale 2B plus 50 per cent) relating to the steps for the 16 February hearing, again as identified in that memorandum.   By my calculation that amounts to $5,726.00 in total. There will not, however, be any order for costs on this application.

“Clifford J”

Solicitors:

JT Law, P O Box 25443, Wellington for the plaintiff ([email protected]) Duncan Cotterill, Wellington for the defendant ([email protected])