Davies Construction Services Limited v Bromley Holdings Limited HC Hamilton CIV 2010-419-989

[2010] NZHC 1872

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-989

BETWEEN  DAVIES CONSTRUCTION SERVICES LIMITED

Plaintiff

ANDBROMLEY HOLDINGS LIMITED Defendant

Hearing:         18 October 2010

Appearances: D. Simpkin for Applicant

D.M O'Neill for Respondent

Judgment:      26 October 2010 at 12 noon

JUDGMENT OF LANG J (As to Costs)

This judgment was delivered by me on 26 October 2010 at 12 noon, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:          Brotherway Legal, P O Box 1069, Hamilton

D.M. O’Neill, Hamilton

DAVIES CONSTRUCTION SERVICES LTD V BROMLEY HOLDINGS LTD HC HAM CIV 2010-419-989

26 October 2010

[1]      On 22 July 2010 Bromley Holdings Limited (“Bromley”) served a statutory demand on Davies Construction Services Limited (“Davies”) seeking payment of the sum of $24,567.32.  On 5 August 2010 Davies applied for an order that the demand be set aside. That application was listed for first call before me today.

[2]      When the proceeding was called, counsel for Bromley appeared and advised me that his client did not oppose the statutory demand being set aside.  I therefore made an order by consent setting the statutory demand aside.  This left outstanding the issue of costs.

[3]      Davies  seeks  an  order  for  costs  on  the  basis  that  it  has  been  put  to unnecessary expense in applying to the court for an order that the demand be set aside.  Davies opposes any order for costs being made.  It says that it notified Davies that it was willing to withdraw the statutory demand before Davies filed its application.  As a result, Bromley says that the application was unnecessary and that it should not be required to pay costs in relation to it.

[4]      Bromley bases its submission on a letter that its debt collection agency sent to counsel for Davies on 29 July 2010.  There is no dispute that the letter was sent or that counsel for Davies received it. The letter is in the following terms:

Thank you for your letter dated 26 July.

Our client, Bromley Holdings is willing to withdraw their statutory demand served on Davies Construction.

There are still 2 issues which need to be rectified in this situation.

1.Davies   Construction   owes   Bromley   for   work   carried   out.      Davies Construction signed terms and conditions agreeing to pay interest and collection costs which I have enclosed a copy of.  Therefore the amount of

$24,567.32 is still owing.

2.Bromley Holdings owes Davies Construction $22,869.09 as was determined by the Building Disputes Tribunal.

Like your client Davies Construction, our client also wishes to put this matter behind them and so propose that the difference of $1,698.23 be paid to rectify this matter.

I would appreciate it if you could get back to us on this matter by Friday 6th August.

[5]      Counsel  for  Davies  says  that  he  did  not  take  the  letter  as  being  an unconditional offer to withdraw the statutory demand.   Rather, he understood Bromley to be suggesting that it would withdraw the statutory demand on the condition that Davies agreed to the proposal set out in the letter.  As a result, Davies believed that it was necessary to file the application seeking an order that the demand be set aside.

[6]      I do not read the letter dated 29 July 2010 as a conditional offer to withdraw the demand.   I see it as an unconditional indication that Bromley was prepared to withdraw the statutory demand.  Although the letter went on to point out that there were still two issues that needed to be rectified, I do not read that statement as amounting to a condition.

[7]      I therefore take the view that the letter rendered the proceeding unnecessary, and I decline to make any order for costs in relation to it.

Lang J