Beckett Books Limited v Moving Out 2012 Limited

[2015] NZHC 2114

IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001493 [2015] NZHC 2114

BETWEEN

BECKETT BOOKS LIMITED

Plaintiff

AND

MOVING OUT 2012 LIMITED Defendant

Hearing:	18 August 2015
Appearances:	D Grindle for the Applicant G Bogiatto for the Respondent
Judgment:	2 September 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 2 September 2015 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

WRMK Lawyers, Whangarei

Auckland City Lawyers, Auckland

BECKETT BOOKS LIMITED v MOVING OUT 2012 LIMITED [2015] NZHC 2114 [2 September 2015]

[1]      This judgment deals with the remaining issue as to costs in this proceeding. The applicant, Beckett Books Ltd, seeks an order for costs on its successful application for an order to set aside the statutory demand dated 9 June 2014 served upon it by Moving Out 2012 Ltd.

[2]      The demand was the second such demand for the same sum, arising from the sale and purchase of the business known as “Beckett Books” that imports and distributes books and educational products. It was issued when the first demand became stale.  It was set aside in the judgment I issued on 8 April 2015.

[3]      As the successful party, Beckett Books relies on the statutory presumption that it is entitled to scale costs under the High Court costs regime.  Ordinarily that presumption would lead to an entitlement of 2B costs against Moving Out in a proceeding of this kind.  Counsel for Moving Out does not argue with the calculation made by counsel for Beckett Books as to the quantum of 2B costs, but he submits that given the unique facts of this case, the appropriate course would be to reserve costs in this proceeding pending the hearing of Beckett Books’ substantive claim to be brought in separate proceedings.  He relies especially upon Beckett Books’ failure to raise a counterclaim in respect of the first statutory demand, and the imprecise nature of the applicant’s claims.

[4]      As far as possible the determination of such costs should be predictable and expeditious: see High Court Rule 14.2(g).  I do not agree that there are unique facts that make it inappropriate to apply the statutory presumption as to costs or to delay the determination of costs.   For reasons traversed in my judgment, Beckett Books demonstrated  a  reasonably  arguable  case  for  a  counterclaim  that  reached  the threshold in s 290(4) of the Companies Act 1993.  Its evidence disclosed allegations sufficient to merit further investigation, and those allegations went unchallenged at the hearing.   In these circumstances there is no good reason to depart from the statutory presumption as to costs that stems from Beckett Books’ success, or to delay an order determining its entitlement to costs.

[5]      Accordingly, I make an order for costs in favour of the applicant in the amount  claimed,  being  2B costs  of $7,363  plus  disbursements  of $1,230.  The

respondent is to make payment within 15 working days.

Associate Judge Sargisson