Alpine Sun Limited v Hortiventure Limited

[2015] NZHC 819

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2014-409-866 [2015] NZHC 819

BETWEEN

ALPINE SUN LIMITED

Applicant

AND

HORTIVENTURE LIMITED Respondent

Hearing:	On Papers
Counsel:	G J C Carter for Applicant J S Morris for Respondent
Judgment	23 April 2015

COST JUDGMENT OF BROWN J

[1]      In my judgment in this proceeding dated 25 February 20151  I granted the respondent’s application for an order to stay the proceeding and I referred the dispute directly to arbitration.   I directed that the respondent was entitled to costs on its interlocutory application seeking a stay of the proceeding on a 2B basis.

[2]      In a memorandum dated 10 March 2015 the respondent suggested that I had overlooked making an award of costs in its favour on the applicant’s originating application.  My Minute of 17 March 2015 explained why I did not make an order for costs in respect of the originating application.

[3]      Regrettably, despite the direction in my judgment, the parties have not been able to agree on costs.  The respondent seeks costs in the sum of $13,134 together with disbursements of $160.   The applicant takes issue with a number of items included in the respondent’s calculation and submits that its cost liability on the

interlocutory application is $6,069.50.

1      Alpine Sun Ltd v Hortiventure Ltd [2015] NZHC 278.

ALPINE SUN LTD v HORTIVENTURE LTD [2015] NZHC 819 [23 April 2015]

[4]      Having  considered  the  parties  memoranda  and  the  exchange  of  email annexed I consider that:

(a)      the applicant’s objection to item 30 in respect of the preparation of the respondent’s affidavit is valid although it is appropriate for a small allocation to be made;

(b)the   memorandum   and   appearance   with   reference   to   the   case management conference on 16 December 2014 were substantially in connection with the protest to jurisdiction;

(c)      notwithstanding the time taken for cross-examination, it is appropriate to allocate approximately half the hearing time to the interlocutory application.

[5]      Consequently the appropriate costs calculation in respect of the protest to jurisdiction application is $9,402.75 in accordance with the schedule attached to this judgment.

[6]      The applicant notes that it has been necessary for it to file two memoranda in respect of costs, the first in relation to the issue the subject of my Minute and the second with reference to the dispute the subject of this judgment.  It is suggested that the Court should award costs on a 2B basis in respect of both the applicant’s memoranda.

[7]      I consider that it is appropriate for a costs allowance to be made in respect of the first memorandum the subject of my Minute.  However in my view honours are evenly shared so far as the costs calculation is concerned and I decline to award costs in respect of the second memorandum.

[8]      Consequently the total sum payable by Alpine Sun to Hortiventure will be

$8,606.75, being 9,402.75 less $796.00.

Brown J

Solicitors:

Wynn Williams, Christchurch

ParryField Lawyers, Christchurch

8 11 30 13 25 24 26 29	Notice of protest to jurisdiction Case management conference memorandum Preparation of affidavit (25 per cent only) Appearance at case management conference Bundle of authorities Written submissions Appearance at hearing Sealing order	0.6 0.4 0.3 0.6 1.5 0.5 0.2	1,194.00 796.00 1,243.75 597.00 1,194.00 2,985.00 995.00 398.00
			9,402.75