Baroni Foods Limited v P K Wholesale Supplies Limited

[2016] NZHC 372

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000702 [2016] NZHC 372

BETWEEN

BARONI FOODS LIMITED

Plaintiff

AND

P K WHOLESALE SUPPLIES LIMITED Defendant

Hearing:	7 March 2016 (Determined on the papers)
Counsel:	G J Ryan for Plaintiff G D Jones for Defendant
Judgment:	7 March 2016

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      The plaintiff applied for further and better discovery.   The application was allocated a fixture on 17 February 2016.  In the event, the defendant provided further discovery to the plaintiff’s satisfaction and the fixture was not required.   Costs, however, have not been agreed.

[2]      On 15 February 2016 I issued a Minute dismissing the application and expressing a view in relation to costs.  My view was that they should be fixed now, and be on a 2B basis plus disbursements, but be costs in the cause to be taken into account at the final resolution of the claim.  I directed counsel to endeavour to agree quantum and invited memoranda if agreement was not reached.

[3]      The plaintiff applies for costs to be fixed now, and to be payable now.  The plaintiff notes that the documents which it received by the informal method finally agreed to were documents which should have been discovered and had been specifically  requested  including  such  documents  as  the  defendant’s  financial accounts and statements for the year ending 31 March 2014 and reports which will

ultimately comprise the accounts for the following financial year.  Counsel concedes

BARONI FOODS LTD v P K WHOLESALE SUPPLIES LTD [2016] NZHC 372 [7 March 2016]

that  some  of  the  information  contained  in  the  documents  now  discovered  is contained in other discovered material.  However, I agree with counsel that is not the point.  The obligation to give discovery relates to documents, not to the provision of the information within them.

[4]      Rule 14.8 provides that costs must be fixed and must be payable when fixed unless there are special reasons to the contrary.  Counsel for the plaintiff says there are no special reasons.  As far as I can discern from the position of the defendant recorded in a joint memorandum dated 12 February, and a later memorandum from counsel for the defendant, the reason put forward as special is that the trial of this case is imminent and the substantive costs in the proceeding will be determined in the near future.

[5]      Having considered the respective positions of the parties recorded in their memoranda I am not satisfied that there are any reasons of substance why costs should not be payable now.  I note that Mr Jones points out that depending on the outcome of the trial, a different sum may be allowed in respect of costs on this application depending on which party is successful, but I accept Mr Ryan’s submission that irrespective of the outcome of the case the plaintiff has succeeded on this application and should have costs as a result.

[6]      I therefore direct that the defendant will pay costs to the plaintiff in the sum of $6,467 as claimed together with disbursements in the sum of $550.

J G Matthews

Associate Judge

Solicitors:

White Fox & Jones, Christchurch.

Bishopdale Law, Christchurch.