Exapl Limited v Pact Group (NZ) Limited

[2012] NZHC 410

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-005919 [2012] NZHC 410

BETWEEN  EXAPL LIMITED First Plaintiff

ANDEXAPL PTY LIMITED Second Plaintiff

ANDPACT GROUP (NZ) LIMITED Defendant

Hearing:         12 March 2012 (On the Papers)

Counsel:         R B Stewart QC and L A O'Gorman for the Plaintiffs

J C Miles QC, S J Katz and M J Austin for the Defendant

Judgment:      12 March 2012

JUDGMENT OF DUFFY J [Re Costs]

This judgment was delivered by Justice Duffy on 12 March 2012 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     R  B  Stewart  QC  P  O  Box  2302  Shortland  Street Auckland  1140  for  the

Plaintiffs

J C Miles QC P O Box 4338 Shortland Street (DX CX10258) Auckland 1140 for the Defendant

Copies To:   Buddle Findlay P O Box 143 Shortland Street (DX CX24024) Auckland 1140

Russell McVeagh P O Box 8 Shortland Street Auckland 1140

EXAPL LTD and ANOR v PACT GROUP (NZ) LTD HC AK CIV-2011-404-005919 [12 March 2012]

[1]      The defendant, Pact Group, was successful in its application for a stay of this proceeding.  It now seeks from the plaintiffs, payment of the sum of $13,805.80 in respect of costs and disbursements.

[2]      The plaintiffs have challenged the defendant’s entitlement to costs on two

grounds. They contend:

(i)That   costs   issues   arising   from   the   hearing   are   more appropriately dealt with at a later date when the substantive claims and the Court’s decision on the experts’ assessment has been made; and

(ii)That the defendant’s quantification is incorrect as it has not been calculated on the basis of the steps required for an interlocutory application.

[3]      The plaintiffs say, therefore, that the appropriate costs come to $3,478, with disbursements of $725, this being the filing fee for the interlocutory application.

[4]      The defendant has responded, contending that it had first sought to have its application for a stay of proceedings heard in advance of the substantive matter. However, the plaintiffs opposed this course of action and persuaded Potter J to order that the stay and the substantive proceedings be heard together.

[5]      The outcome of my decision was to find that the plaintiffs’ application for a ruling on the substantive issue was premature.  Thus, the defendant contends that the approach taken by the plaintiffs caused the defendant to have to incur costs from preparing for the substantive issue, as well as for the interlocutory application, in circumstances where from the outset the defendant had sought to avoid that occurrence by seeking to have separate hearings.

[6]      I  accept  the  defendant’s  argument.    It  must  have  been  apparent  to  the

plaintiffs from the outset that if they sought to have the interlocutory application for

a stay of proceedings and the hearing of the substantive issue heard at the same time that the parties would each incur costs of preparing for both matters.

[7]      Accordingly, I consider that the defendant is entitled to costs on the basis for which they contend.   Neither party disputed that costs should be categorised as scale 2B,  which  is  the  scale  on  which  the  defendant’s  costs  award  has  been calculated.    The  defendant  is  awarded  costs  of  $12,972  and  disbursements  of

$833.80.

Duffy J