Afd Limited v Advanced Guttering and Roofing Systems Limited HC Christchurch CIV 2011-409-000022

[2011] NZHC 1575

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2011-409-000022

BETWEEN  AFD LIMITED Plaintiff

ANDADVANCED GUTTERING AND ROOFING SYSTEMS LIMITED Defendant

Counsel:         DJC Russ for the Plaintiff

A D Marsh for the Defendant

Judgment:      20 July 2011

JUDGMENT AS TO AWARD OF COSTS OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

20.07.11 at 4:00pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:

D Russ, Fletcher Vautier Moore, Nelson – [email protected]

A Marsh, Saunders Robinson Brown, Rangiora – [email protected]

AFD LIMITED V ADVANCED GUTTERING AND ROOFING SYSTEMS LIMITED HC CHCH CIV 2011-

409-000022 20 July 2011

[1]      By my judgment of 23  June 2011 I directed counsel to file memoranda addressing the issue of costs.   The Court has now received these.   That from the applicant’s  counsel  accepts  an  award of costs  on a 2B scale is  appropriate but submits there are four areas where scale costs require adjustment:

a)        Calculation of the allocated time for the respondent’s memorandum in relation to late filing of evidence.

b)        The applicant’s interlocutory application to exclude evidence.

c)        The respondent’s interlocutory application to exclude evidence.

d)       The applicant’s partial success on disputed sum.

Decision

[2]      I do not accept the applicant is entitled to a deduction in connection with the applications to exclude evidence.   Those applications were hardly necessary. Obviously the content of affidavits filed contained hearsay or irrelevant material.  It is well within the means of the Court to deal with those issues at a hearing – indeed as was done.   My recollection is that Mr Greening’s affidavits were replete with irrelevant  and  hearsay  content.     The  fact  that  evidence  in  opposition  to  Mr Greening’s claims may have also contained some irrelevant material does not in the circumstances qualify the applicant for a discount upon its costs obligations.

[3]      The applicant claims a discount on costs due because it considers it was partly successful by its claim when the respondent conceded a portion of the claim ought to be dealt with by a Disputes Tribunal rather than in the Companies Court.  In my view that concession was a generous one but in any event was made timely when full disclosure of the plaintiff’s evidence had been provided.  Clearly, no preparation for hearing time was required in relation to this aspect.  Indeed no actual time was taken in relation to it at the hearing.

[4]      The only concession the Court is prepared to make in relation to the matters addressed on behalf of the applicant concerns the respondent’s claim for 0.4 days for the preparation of a memorandum.   The memorandum in question was relatively brief.  The Court considers 0.2 days would be appropriate for same.

[5]      Accordingly costs are approved on a 2B basis for a total of 3.6 days.

Associate Judge Christiansen