Asphalt Supply Company Limited v Cole John Limited

[2022] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-204

[2022] NZHC 1635

BETWEEN

ASPHALT SUPPLY COMPANY LIMITED

Appellant

AND

COLE JOHN LIMITED

Respondent

Hearing:

On the papers

Appearances:

A M Swan for the Appellant

J Shaw and N G Scrivener for the Respondent

Judgment:

12 July 2022

COSTS JUDGMENT (NO.2) OF HINTON J

This judgment was delivered by me on 12 July 2022 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:

A M Swan, Barrister, Auckland Whitlock & Co, Auckland

J Shaw,

Norris Ward McKinnon, Hamilton

ASPHALT SUPPLY COMPANY LIMITED v COLE JOHN LIMITED [2022] NZHC 1635 [12 July 2022]

[1]    On 26 May 2022 I delivered a judgment in this matter in which Asphalt Supply Company Ltd (ASCO) succeeded on appeal in reducing a costs award granted by Judge Wilson QC against it in favour of Cole John Ltd (Cole John).1 ASCO being the successful party on appeal, I granted costs on the costs appeal on a 2B basis.

[2]    Cole John seeks that I recall the order for 2B costs and brings to my attention that costs on a 2B basis (including disbursements) comes to $18,122. This sum well exceeds the quantum I had anticipated would result from the order made. It is clearly out of proportion with the complexity of the legal issues raised in the appeal, and with the final costs award to Cole John in the substantive proceeding of $28,636.40.

[3]    While ASCO disputes that I have jurisdiction, I consider this situation falls within r 11.9 because I was operating under a significant misunderstanding of the true effect of the order made.

[4]    As submitted by Cole John, the time allocation of band A (or $8,126) is more reasonable for all steps taken in the costs appeal. I do not agree that the award I made should be recalculated or reduced on any other basis. ASCO was successful on almost all points it raised and there was no significant point on which it was unsuccessful. The issues of interest and the date the judgment sum was due were sidewinds that occupied very little time. Furthermore, I considered the point regarding the interest calculation had some merit. It was just not technically before me.

[5]    I consider this is an appropriate case to exercise the power to recall. I therefore recall my award of costs to ASCO on a 2B basis and substitute an award of costs on a 2A basis. This totals $8,126 plus $1,870 disbursements.

1      Asphalt Supply Company Ltd v Cole John Ltd [2022] NZHC 1196.

[6]    Cole John seeks costs on a 2A scale on an abandoned stay application initiated by ASCO for a stay of Judge Wilson QC’s substantive judgment. I consider Cole John is entitled to those costs and award $717 accordingly.

Hinton J