Brand Developers Limited v Alexia Limited HC Auckland CIV 2010-404-4800

[2010] NZHC 2179

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-4800

UNDER  section 153 of the Trade Marks Act 1953

BETWEEN  BRAND DEVELOPERS LIMITED First Plaintiff

ANDFITNESS BRANDS INC Second Plaintiff

ANDALEXIA LIMITED Defendant

(Heard at On the papers) Counsel:       BP Henry for plaintiffs Judgment:  13 December 2010 16:45:00

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

This judgment was delivered by me on 13 December 2010 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Dennis J Gates, PO Box 222, Whangaparaoa

And To:             A Guargueti, 2 Breaker Grove, Waiuku 2123

BRAND DEVELOPERS LTD V ALEXIA LTD HC AUCKLAND CIV-2010-404-4800 13 December 2010

[1]      At  a  case  management  conference  held  on  12 October  2010  I  entered judgment by consent against the defendants in terms of paragraphs (a) and (b) of the prayer for relief in the statement of claim.  I reserved costs and gave the parties the opportunity to agree and, failing agreement, for memoranda to be filed and served.

[2]      The plaintiffs seek judgment for costs based on Category 2 and Band B for each step taken in the proceeding together with disbursements totalling $6,560.90. The defendant, in a short memorandum, points out the very difficult financial situation that it faces and that it did not oppose the orders sought at a very early stage. The defendant’s director says that she has no personal income or ability to pay the costs.

[3]      It  is  appropriate  that  I  record  very  shortly  the  principles  applicable  in awarding costs.

The principles applicable in awarding costs

[4]      Rule 14.1 gives the Court a discretion to order costs in relation to a step taken in a proceeding.  That discretion is generally to be exercised in accordance with the specific Rules contained in rr 14.2-14.10:  Glaister v Amalgamated Dairies Ltd.[1]   In Mansfield Drycleaners  Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd[2] it was said of the costs regime contained in what is now rr 14.2-14.10 that:

[1] Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 [19].

[2] Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16

PRNZ 662 at 668 (CA). 

there is a strong implication that a Court is to apply the regime in the absence of some reason to the contrary

The test to be applied is entirely an objective and not a subjective one.   The only reference which  it is necessary to make towards actual costs is to be found in r 14.2(f), namely that an award of costs should not exceed the costs incurred by the

party claiming the costs: Glaister v Amalgamated Dairies Ltd.[3]

[3] Glaister v Amalgamated Dairies Ltd, above n 1, at 610[14].

[5]      Rule 14.2 lists the principles applying to determination of costs. Subrule (a) affirms the principle that the losing party should pay the costs to the successful party. Subrule (b) requires that the costs reflect the complexity and significance of the proceedings and refers specifically, therefore, to the categorisation of a proceeding which is provided for in r 14.3.  Subrule (c) requires a consideration of each step for which costs are sought and an application of the daily rate having regard to the appropriate band which is to be applied after a consideration of r 14.5(2) and the Third Schedule to the High Court Rules.

[6]      The plaintiffs, here, are entitled to costs.  There is no good reason to depart from the costs regime set out in the High Court Rules, Part 14.  I am satisfied that the steps  that  were  taken  all  fit  within  Band B.    I  am  not  here  ruling  on  what  is appropriate concerning the enforcement of any order for costs.  The analysis that I am undertaking is purely and simply to determine whether a cost order is appropriate and the quantum of that order.  I am satisfied that a cost order is appropriate and that the quantum claimed is the appropriate quantum in the circumstances.

[7]      Accordingly judgment is entered for $6,560.90 inclusive of disbursements.

JA Faire

Associate Judge