Epsom Woods Ltd v Waitakere Farms Ltd

[2020] NZHC 3137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-522

[2020] NZHC 3137

IN THE MATTER

of the Companies Act 1993, s 290, and setting aside a statutory demand

BETWEEN

EPSOM WOODS LIMITED

Applicant

AND

WAITAKERE FARMS LIMITED

Defendant

Hearing:	On the papers
Counsel:	D Hayes for the Applicant AAH Low for the Respondent
Judgment:	27 November 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 27 November 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr D Hayes, Barrister, New Zealand Commercial Law Corp Ltd, Hamilton

Mr M Hunwick (applicant’s instructing solicitor), Hunwick Law Ltd, Hamilton Ms AAH Low, Alexandra Low & Associates, Auckland

EPSOM WOODS LTD v WAITAKERE FARMS LTD [2020] NZHC 3137 [27 November 2020]

[1]    My judgment dated 3 September 2020 dismissed an application by Epsom Woods Ltd (EWL) to set aside a statutory demand issued by Waitakere Farms Ltd (WFL).1 In my judgment, I indicated that WFL is entitled to costs and invited memoranda if costs could not be agreed.

[2]WFL seeks 2B scale costs of $21,150.50 plus disbursements of $645.04.2

[3]EWL acknowledges that costs are payable but disputes a number of items.

[4]    I accept EWL’s submission that some of the costs claimed should be disallowed. Item 32 (preparation for hearing) does not apply to originating applications. I also do not allow 1.5 days for submissions on costs. While the Court has power to award costs in relation to costs, they are unusual and the Court is reluctant to award them.3 Here the reason to award them is EWL’s failure to respond to WFL’s schedule of costs claimed before the memorandum was filed. A response indicating disputed items ought to have resolved the matter. In any event, 1.5 days for a two page costs memorandum is excessive. I allow 0.4 days. The remaining items claimed are allowed, totalling $13,741.50 (a reduction of 3.1 days, totalling $7,409).

[5]    In relation to disbursements, I allow service of the second demand and the sealing fee.

Result

[6]The respondent is entitled to 2B costs of $13,741.50 plus disbursements of

$251.54.

Gault J

1      Epsom Woods Ltd v Waitakere Farms Ltd [2020] NZHC 2283.

2      WFL submitted that an uplift might have been warranted but did not seek an uplift.

3      Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; and Barry Park Investments Ltd v Body Corporate No 95388 [2016] NZHC 1527 at [25].