Auckland building Group Limited v Palm Beach Vineyard Limited

[2017] NZHC 408

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2016-404-003289

[2017] NZHC 408

BETWEEN

AUCKLAND BUILDING GROUP LIMITED

Applicant

AND

PALM BEACH VINEYARD LIMITED

Respondent

Hearing:	On the papers
Counsel:	C T Patterson/R A Dellow for the Applicant J R Meadows for the Respondent
Judgment:	10 March 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

10.03.17 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

AUCKLAND BUILDING GROUP LIMITED v PALM BEACH VINEYARD LIMITED [2017] NZHC 408 [10

March 2017]

[1]                 The respondent served a statutory demand upon the applicant seeking payment of $51,881.49.

[2]                 The applicant (ABG) engaged the respondent (Palm Beach) to provide business development services to increase revenue. A written contract was entered into. Certain services were provided. ABG said those were paid for. ABG says in September 2016 it terminated Palm Beach’s retainer by providing reasonable notice. Following termination Palm Beach issued an invoice for an alleged balance due on target earnings. ABG denies liability of this claiming Palm Beach was not successful in generating the $10M revenue as contractually required.

[3]                 At the first call of this matter on 10 February 2017 Palm Beach’s director Mr Meadows purported to appear for Palm Beach. He was permitted an indulgence and allowed to appear at that mention.

[4]                 Since then Palm Beach has not been legally represented. Mr Meadows filed an opposition and affidavit in support without serving these on ABG.

[5]                 At the 10 February 2017 mention Mr Meadows handed counsel for ABG a draft of his affidavit in support. No sworn copy or any final notice of opposition has been filed.

[6]                 It was the court’s initial impression that counsel was to be engaged on behalf of Palm Beach. That never occurred.

[7]                 When the matter was called on 23 February 2017 the Court was critical of Mr Meadows conduct and directed Palm Beach to immediately engage legal counsel to prepare any documents to be filed in Court and to serve its opposition and affidavit in support no later than 1 March 2017.

[8]                 Palm Beach did not serve its opposition or affidavit as required by 1 March 2017 but instead on that date Mr Meadows contacted counsel for ABG to advise the statutory demand would be withdrawn.

[9]                 The statutory demand was withdrawn. Palm Beach acknowledges there is a dispute and advises it intends to file a proceeding in the District Court for determination of that dispute.

[10]             In that assessment of matters it is clear the statutory demand should not have been served.

[11]             Palm Beach resists ABG’s application for costs. Palm Beach requests the question of costs be deferred until the District Court dispute is resolved.

[12]             In this Court’s view costs must be paid by Palm Beach and 2B costs are appropriate.

[13]             The Court has reviewed ABG’s counsel’s assessment of those costs and disbursements and fixes those costs and disbursements in the sum of $6,839.61 as sought. There is an order accordingly for payment of those costs by Palm Beach.

Associate Judge Christiansen