Ectch Limited v Dennis & Leo Bradley Construction Limited

[2023] NZHC 770

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001228

[2023] NZHC 770

UNDER

Companies Act 1993

BETWEEN

ECTCH LIMITED

Applicant

AND

DENNIS & LEO BRADY CONSTRUCTION LIMITED

Respondent

Hearing:	On the papers
Counsel:	T J P Bowler for Applicant J M Glover for Respondent
Judgment:	5 April 2023

JUDGMENT OF ANDREW J

[Costs]

This judgment was delivered by Justice Andrew on 5 April 2023 at 4.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………………

ECTCH LTD v DENNIS & LEO BRADY CONSTRUCTION LTD [2023] NZHC 770 [5 April 2023]

[1]    In my judgment of 14 November 2022, I dismissed the application by the applicant to set aside a statutory demand under s 290 of the Companies Act 1993.1

[2]    I also expressed the preliminary view that having succeeded, Brady Construction, the respondent, was entitled to costs and on an actual and reasonable basis in accordance with s 23(2)(a)(ii) of the Construction Contracts Act 2002.

[3]    The parties have been unable to agree on costs. This judgment contains my decision on costs.

[4]I am satisfied that the fees sought by the respondent, namely counsel’s fees of

$13,815 and solicitor’s fees of $9,000 (total fees of $22,815) are fair and reasonable. The respondent has supplied narration details to justify an award of costs in that amount.2

[5]    I reject the submission of the applicant that this is akin to a two counsel allowance. The respondent is entitled, in my view, to costs on an actual and reasonable basis. It is reasonable in this case to allow for both counsel and solicitor’s costs.

[6]    I further order pursuant to s 291(1)(a) of the Companies Act 1993 that the applicant company is to pay the debt, the subject of the statutory demand, by 28 April 2023 and that in default of payment, the creditor may make an application to put the applicant into liquidation.

Andrew J

1      ECTCH Ltd v Dennis & Leo Brady Construction Ltd [2022] NZHC 2980.

2      Black v ASB Bank Ltd [2012] NZCA 384 at [77]–[79].