Cottonsoft Limited v Creative Hotpot Limited HC Dunedin CIV 2010-412-391

[2010] NZHC 1418

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2010-412-000391

UNDER  Section 72 of the District Courts Act 1947

IN THE MATTER OF     of an appeal against a decision of the

District Court at Dunedin

BETWEEN  COTTONSOFT LIMITED Appellant

ANDCREATIVE HOTPOT LIMITED Respondent

Counsel:         R Kelly for Appellant

J K Goodall for Respondent

Judgment:      16 August 2010

JUDGMENT OF HON. JUSTICE FRENCH

as to Costs

[1]      On 16 June 2010 I dismissed Cottonsoft’s appeal against a decision of the

District Court declining Cottonsoft’s application for an adjournment. [2]      The successful respondent now seeks costs.

[3]      Cottonsoft opposes any award of costs and does so on the following grounds:

i)        The appeal was an unusually swift and simple appeal.

ii)The respondent failed to comply fully with my directions regarding service of briefs of evidence, in that documents referenced in the briefs were served later.

COTTONSOFT LIMITED V CREATIVE HOTPOT LIMITED HC DUN CIV-2010-412-000391  16 August

2010

iii)Creative Hotpot failed to honour a commitment it gave not to subject Cottonsoft’s key witness, Ms Johnston, to extensive cross-examination.

[4]      Creative Hotpot has responded with allegations of its own about default on the part of Cottonsoft.

[5]      The timetabling  direction  I gave  related  only to  the service  of  briefs  of evidence (not the bundle of documents).  The briefs were served on the correct date.

[6]      Further,  at  the  time  of  the  appeal  Cottonsoft’s  advised  intention  was  to arrange for Ms Johnston to give her evidence prior to trial.  That was the reason I made the direction regarding early service of briefs of evidence.  Apparently in the end Cottonsoft did not however seek to have her evidence heard before the hearing.

[7]      What counsel for Creative Hotpot said in his  memorandum about  cross- examination of Ms Johnston was that since the issues were primarily contractual, he did not propose submitting Ms Johnston to an extensive cross-examination.

[8]      It  would  be  wrong to  suggest  that  this  assertion  was  “the  basis”  of  my decision, as Cottonsoft now suggests.   While it was certainly a matter I took into account, it was not a factor identified in my minute.  Counsel for the respondent says regular breaks were taken at the hearing to allow Ms Johnston to pace herself, and that no objection was taken at the time.

[9]      I am not satisfied that any of the reasons raised are sufficient to displace the primary principle, namely that costs should follow the event.

[10]     At a daily recovery rate of 2B scale costs of $1880 per day, I consider an appropriate award is one day.

[11]     I therefore award costs to Creative Hotpot in the sum of $1880.

Solicitors:

Wilkinson Adams, Dunedin

J K Goodall, Auckland