Anysley Developments Limited v Three60Degrees Limited

[2021] NZHC 460

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-498

[2021] NZHC 460

BETWEEN

ANYSLEY DEVELOPMENTS LIMITED

Applicant

AND

THREE60DEGREES LIMITED

Respondent

Hearing:

(Determined on the Papers)

Counsel:

R A Hearn for the Applicant

A N Riches for the Respondent

Judgment:

10 March 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER (COSTS)

This judgment was delivered by me on 10 March 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 10 March 2021

ANYSLEY DEVELOPMENTS LIMITED v THREE60DEGREES LIMITED [2021] NZHC 460

[10 March 2021]

[1]                 On 25 February 2021 I delivered my Judgment setting aside a statutory demand issued by the respondent, Three60Degrees Limited (Three60Degrees), and reserved costs.1 I noted the fact the application to set aside succeeded on a point only raised late in the applicant’s submissions and would need to be taken into account when costs were assessed, if costs could not be agreed.

[2]                 The applicant, Anysley Developments Limited (Anysley) has sought costs on a 2B basis. Disbursements are also claimed, being the filing fee and the photocopying of the bundle.

[3]                 The disbursements are unremarkable and are approved. The scale costs would also be unremarkable but for the consideration I noted in my earlier Judgment.

[4]                 But for the late addition of the equitable assignment point, the application to set aside would have failed. The respondent appropriately did not issue with take the point that the assignment argument was only raised in submissions. It is true that application to set aside was prepared under pressure, but the applicant’s reliance on the equitable assignment point cut directly across the applicant’s original evidence. The applicant’s case changed fundamentally from a claim of an express agreement by Three60Degrees to credit the mistaken payment to Anysley to the equitable assignment argument. It appeared that this change of position was a response to the respondent’s notice of opposition and the affidavit in opposition.

[5]                 It is correct the respondent persisted with its opposition, even once the equitable assignment point was raised. However, I am satisfied Three60Degrees incurred unnecessary costs as a result of the application being based on a ground which fundamentally changed during the course of the application.

[6]                 On a broad-brush basis, I reduce the 2B costs claimed by 33 per cent to represent the significant change in direction the case took after the application was originally filed. However, costs are still appropriate given the respondent continued with its opposition even when the equitable assignment argument was raised.

1      Anysley Developments Ltd v Three60Degrees Ltd [2021] NZHC 280.

Result

[7]                 Accordingly, I order that there be a costs award to the applicant, Anysley Developments Ltd, on a 2B basis less 33 per cent, being $11,472 (as per the applicant’s calculation) less a third ($3,824) making a total of $7,648 which, together with disbursements of $609, giving a total of $8,257.

Associate Judge Lester

Solicitors:

Corcoran French, Christchurch Saunders & Co, Christchurch