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
Epsom Woods Ltd v Waitakere Farms Ltd [2020] NZHC 3137
Case
[2020] NZHC 3137
Decision Date
CaseChat Overview and Summary
Epsom Woods Limited (EWL) sought to set aside a statutory demand issued by Waitakere Farms Limited (WFL) under section 290 of the Companies Act 1993. The application was dismissed by Gault J on 3 September 2020, and WFL subsequently sought costs of $21,150.50 plus disbursements of $645.04. EWL acknowledged that costs were payable but disputed a number of items claimed by WFL. Gault J reviewed the costs claimed and found that some items should be disallowed. Specifically, the court disallowed costs for preparation for hearing, as they were not applicable to originating applications, and reduced the time allowed for submissions on costs. Gault J also disallowed some disbursements, allowing only the service of the second demand and the sealing fee. The court ordered that WFL was entitled to 2B costs of $13,741.50 plus disbursements of $251.54. The decision highlights the importance of timely responses to schedules of costs and the court's reluctance to award costs in relation to costs.