CKL Surveys Limited v Hunua Properties Limited HC Auckland CIV 2010-404-2587

[2010] NZHC 1061

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-2587

IN THE MATTER OF     the Companies Act 1993

BETWEEN  CKL SURVEYS LIMITED Plaintiff

ANDHUNUA PROPERTIES LIMITED Defendant

Hearing:         16 June 2010

Appearances: Mr Hayes for plaintiff

Mr M S McDonald (director of defendant) Judgment: 16 June 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE [on Costs]

Solicitors:

Maude Miller, P O Box 213, Wellington – by email: [email protected]

Copy:

Cook Morris Quinn – by email:  andrew[email protected]

MrMcDonald c/o Chatfield & co, Level 10, Newcall Tower, 44 Khyber Pass Road, Auckland

CKL SURVEYS LIMITED V HUNUA PROPERTIES LIMITED  HC AK CIV-2010-404-2587  16 June 2010

[1]      The plaintiff will be withdrawing this proceeding.  The amount claimed in the statement of claim has been paid however there is a dispute as to costs.  Mr Hayes says that the plaintiff seeks costs on a 2B basis on the ground that the plaintiff has been successful.   Mr McDonald for the defendant has filed a memorandum; essentially he says that he did not understand that there would be additional costs. Mr McDonald says that the company was advised of the costs late in the piece.  He says that the company is paying the debt in any event even though it does not owe the amount claimed.

[2]      Irrespective of whether the defendant considers that it was not liable for the debt, the plaintiff has obtained in the proceedings what it set out to, and it is to be regarded as the successful party.  The usual rule is that costs follow the event so that would  mean  that  the  plaintiff  should  receive  costs.     There  is  no  statutory requirements  or  Rules  requirement  that  the  intention  to  seek  costs  should  hbe notified in the pleading.   The Rules contain detailed provisions governing Court costs and that is a public document which can be seen by litigants.  I accept though for someone in Mr McDonald’s position he might not know what the Court’s usual practice is when applying the Rules.  But that does not to me, amount to a weighty reason why the usual Rule as to costs should not apply.  As to the late advice, that is really connected with the point that the defendant did not appreciate that costs orders could be made.  The fact was that the plaintiff had to go to Court to get payment and I do not consider that is a factor which offsets or defeats the right to costs.  For those reasons I consider that the plaintiff’s application for costs is well founded and I make an order directing costs on a 2B basis together with disbursements to be fixed by the

Registrar.

J.P. Doogue

Associate Judge