Busck Prestressed Concrete Ltd v Whangarei District Council
[2014] NZHC 355
•4 March 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2013-488-470 [2014] NZHC 355
BETWEEN BUSCK PRESTRESSED CONCRETE LTD
Appellant
ANDWHANGAREI DISTRICT COUNCIL Respondent
Hearing: (on the papers)
Counsel: A D Banbrook for Appellant
L McEntegart for Respondent
Judgment: 4 March 2014
JUDGMENT OF HEATH J
This judgment was delivered by me on 4 March 2014 at 10.00am pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Thomson Wilson, Whangarei
John Gilding & Associates, Whangarei
Counsel:
L McEntegart, AucklandA D Banbrook, Auckland
BUSCK PRESTRESSED CONCRETE LTD v WHANGAREI DISTRICT COUNCIL [2014] NZHC 355 [4
March 2014]
The application
[1] Whangarei District Council (the Council) seeks costs against Busck Prestressed Concrete Ltd (Busck) on the abandonment of the latter’s appeal against an arbitral award.
Background
[2] The Council and Busck were in dispute about the amount of ground rent payable on a property occupied by Busck, situated at 8 Fraser Street, Whangarei. Busck and a number of other lessees in a similar situation required the dispute to be resolved by arbitration. An arbitral tribunal was constituted under an arbitration agreement into which the parties entered on or about 16 August 2012.
[3] The quantum of an appropriate ground rent was considered by the arbitral tribunal and fixed in an award made on 31 July 2013. The rent for the Fraser Street property was higher than that for which Busck had contended.1 Costs were reserved for further submissions.2 On 30 August 2013, the parties advised the arbitral tribunal that they had agreed that costs would lie where they fell.
[4] On 4 November 2013, Busck filed an appeal against the arbitral award. It alleged errors of law3 in the assessment of ground rent. In bringing its appeal, Busck did not refer to the terms of the arbitration agreement between the parties that fixed a specific time within which an appeal was to be brought. Clause 7 of the arbitration agreement required an appeal to be filed in the High Court at Whangarei within 30 days of the date on which the party received the award. The award was sent by the presiding arbitrator to the parties by email, on 2 August 2013. That can be taken as the date of receipt, for the purposes of cl 7. The appeal was filed on 4 November
2013.
[5] The Council applied to strike-out the appeal on the grounds that it was out of time. That application was set down for hearing before me on Friday 7 February
1 Northland Regional Council and Whangarei District Council v Various lessees of both lessors
(Arbitration, 31 July 2013, Hon B J Paterson QC, P J Mahoney and F Newman) at para 120.
2 Ibid, at para 121.
3 See cl 7 of the arbitration agreement, set out at para [10] below.
2014. However, on 3 February 2014, Busck abandoned its appeal. That rendered the strike-out application moot. The appeal was dismissed, with costs reserved and to be determined on the papers.4
Submissions on costs
[6] The Council seeks costs on a 2B basis, with an uplift of 50%, in respect of both Busck’s appeal and the Council’s application to strike-out. The amount claimed is $9,154.
[7] Increased costs are sought under r 14.6(3)(b)(i)–(iii) of the High Court Rules:
14.6 Increased costs and indemnity costs
...
(3) The court may order a party to pay increased costs if—
...
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i) failing to comply with these rules or with a direction of the court; or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
....
[8] Mr McEntegart, for the Council, submits that increased costs are justified because:
(a) Busck did not comply with the procedures set down in rr 26.3 and
26.4 of the High Court Rules, governing the circumstances in which an appeal from an arbitral award is commenced.
4 Busck Prestressed Concrete Ltd v Whangarei District Council HC Auckland CIV 2013-488-470 (Minute (No. 2)) 11 February 2014, at paras [2] and [3].
(b)Despite having been alerted to the significance of the arbitration agreement, Busck did not annex the agreement to either of its affidavits in support, and made no mention of the jurisdictional point in its Court documentation.
(c) The affidavits filed on behalf of Busck were discursive and irrelevant, seeking to re-litigate matters of fact that had been determined by the arbitral tribunal.
(d)It was clear that the appeal was out of time. That point having been drawn to Busck’s attention, increased costs were justified, to reflect the time and trouble to which the Council was put in responding to the appeal.
[9] Mr Banbrook, for Busck, contends that the appeal was abandoned on the grounds that “there was an insufficient evidential basis on which to argue the substantive ground of appeal, namely the adjustment required to the assessment of ground rental to reflect the value of lessees’ improvements on the” relevant site. Mr Banbrook does not accept that the time bar was applicable. He contended that the agreed time for appealing had not been triggered as no written award was delivered by the arbitral tribunal dealing with outstanding questions of costs and confidentiality.
Analysis
[10] Clause 7 of the arbitration agreement provided:
7.The award shall be final and binding on the parties in all respects except that either party may appeal to the High Court on any question of law arising out of the award. Any such appeal must be commenced by filing a notice of appeal in the High Court at Whangarei within 30 days of the date the award is received.
[11] I agree with Mr McEntegart that the parties clearly intended to limit the time within which an appeal could be brought to 30 days within the date on which the award was received. Given the possibility of partial awards being given on (for example) the merits, costs and confidentiality, the singular reference to the term “the
award” in cl 7, and in particular “the date on which it was received” is strongly suggestive of the need for any appeal from a particular award to be filed within the relevant 30 days. For the purpose of the costs application, I am satisfied that the appeal was filed late. But that does not necessarily trigger a right to increased costs.
[12] Having reviewed the submissions and the supporting affidavits, I am satisfied that it would be appropriate to award 2B costs on both the appeal and the interlocutory application to strike-out the appeal. I am not satisfied that an uplift is appropriate. I do not consider that the factors to which Mr McEntegart require an uplift on the basis of those that fall within r 14.6(3)(b)(i)–(iii) of the High Court
Rules.5 To the extent that they do (eg, failure to comply with Court rules),6 the
conduct is not such as to warrant an uplift on those grounds.
[13] Accordingly, I consider that the appropriate award of costs is on a 2B basis. That should be for both responding to the abandoned appeal and the Council’s (appropriate) application to strike-out.
[14] Given the difference in the calculations put forward by counsel for the Council and Busck, I propose to leave the quantification of the costs award to the Registrar.
Result
[15] Costs are awarded in favour of the Council against Busck on a 2B basis together with reasonable disbursements, both to be fixed by the Registrar. The costs shall include preparation of a memorandum in support of the present application for costs, and encompass both responding to the appeal and the making of the strike-out
application.
Delivered at 10.00am on 4 March 2014
P R Heath J
5 See also Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA) at para [27].
6 See para [8](a) above.
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