Anysley Developments Limited v Three60Degrees Limited

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

CaseChat Overview and Summary

Anysley Developments Limited, the applicant, sought to set aside a statutory demand issued by Three60Degrees Limited, the respondent, in a case heard and determined on the papers in the High Court of New Zealand, Christchurch Registry. The primary dispute centred on the validity of the statutory demand and the circumstances under which it was issued. The court was tasked with deciding whether the statutory demand was correctly issued and, if not, whether it should be set aside. Furthermore, the court had to consider the applicant's request for costs on a 2B basis and associated disbursements.

The court examined the legal issues concerning the validity of the statutory demand and the circumstances under which the respondent issued it. It was critical to determine whether the respondent had the right to issue the statutory demand and whether the applicant had any defences or grounds to challenge its validity. The court also had to consider the timing and manner in which the applicant raised new arguments, particularly the equitable assignment point, which was introduced late in the proceedings. The court assessed the impact of this late introduction on the respondent's costs and the overall fairness of the proceedings.

In its judgment, the court found that the statutory demand could be set aside based on the equitable assignment argument, which was introduced late in the applicant's submissions. The court noted that the respondent had not raised the timeliness of the argument and had continued to oppose the application. However, the court acknowledged that the applicant's change in legal strategy midway through the proceedings led to unnecessary costs for the respondent. The court decided to reduce the 2B costs by 33 per cent to account for this significant shift in the applicant's case but deemed it appropriate to award some costs due to the respondent's persistence in opposing the application.

The court ordered that Anysley Developments Limited be awarded costs on a 2B basis, reduced by 33 per cent, amounting to $7,648, plus disbursements of $609, resulting in a total award of $8,257. This decision reflected the court's consideration of both the merits of the case and the impact of the procedural changes on the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established