Ex Ucl Limited v Solarix Networks Limited

[2015] NZHC 1902

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-97 [2015] NZHC 1902

UNDER	the Arbitration Act 1996
IN THE MATTER OF	an appeal against interim arbitration awards of Mr W M Wilson QC
BETWEEN	EX UCL LIMITED Plaintiff
AND	SOLARIX NETWORKS LIMITED Defendant

Hearing:	On the Papers filed 14 July 2015
Appearances:	S D Munro and J W C Nicolle for Plaintiff J E Lethbridge and T J P Gavigan for Defendant
Judgment:	11 August 2015

JUDGMENT OF WHATA J ON COSTS

This judgment was delivered by Justice Whata on

11 August 2015 at 5.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Anderson Lloyd, Christchurch

Grove Darlow & Partners, Auckland

EX UCL LIMITED v SOLARIX NETWORKS LIMITED [2015] NZHC 1902 [11 August 2015]

[1]      In my judgment of 29 June 2015,1 I allowed an appeal against an arbitrator’s decision about the definition of “Trade Debt” and referred the matter back to the arbitrator, to reconsider in light of my interpretation of the plain meaning and effect of clause 13 of the relevant contract.

[2]      I indicated that costs on the appeal should follow the event in the usual way.

[3]      The defendant, Solarix, submits that while I referred the matter back to the arbitrator, Unleash did not obtain the orders sought by it and did not improve its position following the appeal.  It says a realistic appraisal of the end result warrants a costs award in favour of Solarix for scale 2B costs with a reduction of 25 per cent to acknowledge Unleash’s only remaining appeal point.

[4]      By contrast, the plaintiff Unleash submits that applying a “realistic appraisal” and endeavouring to do justice to both sides, costs should be awarded to the plaintiff on a category 2B basis.

Framework for assessment

[5]      Rule 14.1 of the High Court Rules confers a general discretion on this Court to award costs.   That discretion is not unfettered and should be exercised in accordance with the general scheme of Part 14.   When the discretion is exercised outside  the  general  scheme  of  those  Rules,  then  it  must  be  undertaken  in  a

considered and particularised way.2    But I do not propose to exercise my discretion

outside the general scheme.   Unleash succeeded in having the central issue of interpretation of the meaning of “Trade Debt” referred back to the arbitrator for reconsideration.  While several of the grounds raised by Unleash failed, none were without merit and or they provided context to the evaluation that needed to be undertaken by me in any event.  On that basis, Unleash is entitled to its costs in the usual way.

[6]      I have also considered whether or not I should defer a costs award pending

the outcome of the arbitrator’s decision as mooted by Solarix.  But that assumes that

1            EX UCL Ltd v Solarix Networks Ltd [2005] NZHC 1474.

2            Glaister v Amalgamated Dairies Ltd [2014] 2 NZLR 606 at 24 and 28.

the matter will require further attention of the High Court and I can see no reason why that must be so.

[7]      In all of the circumstances, therefore, I make an award in favour of Unleash on a category 2B basis together with disbursements to be fixed by the registrar. Mr Munro mentioned that the High Court Amendment Rules 2015 came into force on 1 July 2015, increasing the daily rate.  I have not heard detailed submissions on the effect of these amendments and I prefer simply to proceed on the basis of the Rules as they existed at the time of the hearing. The quantum of the costs shall be calculated accordingly.