Butch Pet Foods Ltd v Mac Motors Ltd

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-411 [2017] NZHC 2776

BETWEEN
BUTCH PET FOODS LTD

Appellant

AND

MAC MOTORS LTD Respondent

Hearing: (On the papers)

Appearances:

P T Finnigan for Appellant
M Wilkinson, Director of Respondent

Judgment:

13 November 2017

COSTS JUDGMENT OF BREWER J

Solicitors:
Romaniuk & Associates (Auckland) for Appellant
(Copy to Respondent in person)

BUTCH PET FOODS LTD v MAC MOTORS LTD [2017] NZHC 2776 [13 November 2017]

[2] The appellant (Butch) sued the respondent (Mac) in the District Court for

$32,545.77. It failed. Mac was represented by its director and so costs against

Butch were limited to disbursements. The District Court Judge fixed these at

$83,037.00, being mostly the costs of expert witnesses.

[3] Butch appealed the Judge’s dismissal of its claim and her award of

disbursements. Again, Mac was represented by its director.

[4] In my judgment of 10 October 2017,1 I dismissed Butch’s substantive appeal

but reduced the disbursements award to $52,291.00. I invited submissions on costs.

[5] Butch now claims costs of $12,000 for being successful in having the award of disbursements reduced. Mac, which cannot claim costs because of its lay representation, opposes being ordered to pay costs.

[6] I have a clear view of how, on the merits and in the interests of justice, I

should exercise my discretion:

(a) Butch lost its substantive case in the District Court and on appeal to this Court.

(b)Mac was put to considerable cost defending itself. Its expenditure on expert witnesses was $109,487.73.

(c) Butch escapes paying standard costs (which would be considerable)

because Mac was represented by its director.

(d) Butch succeeded in reducing the proportion of Mac’s expenditure on

experts which it has to pay.

(e) The claim brought by Butch was for $32,545.77. The grounds of appeal did not have apparent merit, but required tedious examination.

1 Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 2473.

Brewer J

CaseChat Overview and Summary

Butch Pet Foods Ltd sought to recover $32,545.77 from Mac Motors Ltd, but was unsuccessful in the District Court and on appeal to the High Court. The matter now before the Court is Butch's application for costs of $12,000, after the High Court reduced the amount of disbursements awarded to Mac. The primary issue before the Court was whether Butch was entitled to any costs, and if so, what amount. Given that Butch's appeal was not manifestly without merit, and that Mac was represented by its director, Butch was not liable for standard costs. However, the Court had to consider whether Butch was entitled to any costs for its partial success in reducing the amount of disbursements awarded to Mac.

The Court noted that Butch had not succeeded in its substantive claim, but had achieved a partial success in reducing the amount of disbursements awarded. The Court also noted that Mac had incurred significant costs in defending the proceedings, including $109,487.73 in expert witness fees. The Court considered it appropriate to exercise its discretion to award Butch costs of $6,000, being half of the amount it had sought. The Court considered that this amount reflected Butch's partial success, while also taking into account the significant costs incurred by Mac.

Butch Pet Foods Ltd is entitled to costs of $6,000, to be paid by Mac Motors Ltd. The Court considered that this amount reflected Butch's partial success, while also taking into account the significant costs incurred by Mac. The costs are to be paid within 14 days of the judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	(On the papers)
Appearances:	P T Finnigan for Appellant M Wilkinson, Director of Respondent
Judgment:	13 November 2017