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Energy Securities LP v Vector Ltd

Energy Securities LP v Vector Ltd

Case [2019] NZHC 1387 18 June 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-166

[2019] NZHC 1387

UNDER the Companies Act 1993

BETWEEN

ENERGY SECURITIES LP

Plaintiff

AND

VECTOR LIMITED

Defendant

Hearing: On the papers

Appearances:

T J Herbert for the Plaintiff

J K Goodall and K M Venning for the Defendant

Judgment:

18 June 2019

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 18 June 2019 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Currie Lawyers Ltd, Christchurch
Chapman Tripp, Auckland T J Herbert, Auckland

Counsel: J K Goodall, Auckland

ENERGY SECURITIES LP v VECTOR LTD [2019] NZHC 1387 [18 June 2019]

Introduction

[1] On 14 March 2019, the plaintiff, Energy Securities LP (ESL), unilaterally discontinued its proceeding against the defendant, Vector Ltd (Vector).

[2] The parties have been unable agree costs. Vector has filed a memorandum seeking costs and disbursements as set out in Annexure A to this judgment.1

The law

[3] Costs are at the discretion of this Court.2 The High Court Rules 2016 provide guidance as to how the discretion might be exercised.3

[4] The general principle is that the party who fails with respect to a proceeding should pay costs to the successful party.4 The successful party should be awarded costs on a scale basis.5 But, when applying the scale costs regime, the Court must consider each formal step individually for the purposes of assessing the appropriate time band. A blanket approach is not appropriate.6

[5] Ultimately, the overriding consideration when exercising the discretion to award costs is that any award ought to do justice between the parties.7

Submissions

[6] Vector seeks scale costs in the amount of $37,018.8 The items are all claimed on a 2B basis, with the exception of a claim for written submissions in support of the applications for summary judgment and strike out, which is sought on a 2C basis.

1The items and amounts set out in Annexure A reflect the reductions accepted by Vector, in a reply memorandum in response to submissions for ESL.

2      High Court Rules 2016, r 14.1(1).
3      Rules 14.2–14.7.
4      Rules 14.2(1)(a).
5      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
6      Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544 at [35].
7      Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].
8Mr Goodall, for Vector, in his memorandum, claimed scale costs of $38,133. However, for the reasons detailed at [19], [20] and n 11 of this Judgment, the actual amount claimed is $37,018. This is calculated by Vector’s original claimed amount ($38,133) – ($223 + $446 + $446) to reflect the corrected reductions discussed at [18]–[20].

[7] Vector then seeks increased costs on those scale costs under r 14.6(3) on the grounds that ESL failed to comply with court directions over an extended period and pursued an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Energy Securities LP v Vector Ltd

Details

AGLC: Energy Securities LP v Vector Ltd [2019] NZHC 1387
Case: [2019] NZHC 1387
Decision Date: 18 June 2019

CaseChat Overview and Summary

The High Court of New Zealand considered the issue of costs in a proceeding between Energy Securities LP (ESL) and Vector Ltd (Vector). ESL had discontinued its proceeding against Vector, but the parties could not agree on the costs. The primary issues were whether the steps in the proceeding were properly categorised for scale costs, whether Vector was entitled to increased costs, and whether the claimed disbursements were reasonable. The court found that Vector was entitled to scale costs of $32,781 and increased costs of $16,389.50, bringing the total costs to $49,171.50. Vector was also awarded $1,458.85 in disbursements, resulting in a total award of $50,630.35. The court reasoned that Vector's written submissions were properly classified as 2B, and the increased costs were justified due to ESL's failure to comply with court directions and its pursuit of an unmeritorious argument.

Orders