Cynamiclife Limited v Meder

[2016] NZHC 1860

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2016-404-001596

[2016] NZHC 1860

UNDER

The Companies Act 1993

BETWEEN

CYNAMICLIFE LIMITED

Applicant/Plaintiff

AND

MARC MEDER

Respondent/Defendant

Hearing:

On the papers

Counsel:

L Ponniah for the Applicant/Plaintiff

C K Lyon for the Respondent/Defendant

Judgment:

11 August 2016

COSTS JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

11.08.16 at 3:00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CYNAMICLIFE LIMITED v M MEDER [2016] NZHC 1860 [11 August 2016]

[1]        Mr Meder served a statutory demand upon the applicant claiming a debt was due for unpaid building contract work.

[2]        The applicant responded with the present setting aside application. In support of that a detailed affidavit attaching 16 exhibits outlined the nature of the challenge to Mr Meder’s claims over the previous six years.

[3]Mr Meder then advised the statutory demand would be withdrawn.

[4]        In response to the applicant’s claim for costs counsel for Mr Meder has filed a memorandum. Counsel says that prior to service of the demand two letters of demand had been sent to the applicant’s then registered office. No response had been received and on that basis the statutory demand issued.

[5]Mr Meder’s counsel says there was no communication from the applicant’s

solicitors regarding an alleged dispute before the application to set aside was filed.

[6]        The applicant seeks 2B costs and disbursements. The applicant’s evidence is that there has been a long outstanding dispute associated with claims of substantial defective work.

[7]        It seems the two letters of demand sent by Mr Meder’s lawyer before the statutory demand was served, were indeed delivered at that time to the then registered office of the applicant. Coincidentally it seems the applicant registered a change of office shortly thereafter.

[8]These matters notwithstanding it is the Court’s view costs should in the usual

course be fixed on a 2B basis inclusive of costs.

[9]        There is clear evidence of a dispute between the parties and in the circumstances the service of the statutory demand is inappropriate. Even if the Court was inclined to direct that payment be withheld until the parties’ dispute was resolved,

in this case the Court has no confidence that any resolution could be achieved in the foreseeable future.

Judgment

[10]Costs and disbursements are fixed in the sum applied for.

Associate Judge Christiansen