Fairway Resolution Limited (Formerly Dispute Resolution Services Limited) v Henson

[2015] NZHC 1563

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-0353 [2015] NZHC 1563

UNDER

The Companies Act 1993

BETWEEN

FAIRWAY RESOLUTION LIMITED (FORMERLY DISPUTE RESOLUTION SERVICES LIMITED)

Applicant

AND

IAN HENSON Respondent

Hearing:

4 May 2015

(on papers submission from Applicant)

Appearances:

Ms D Bennington for the Applicant

Judgment:

7 July 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

07.07.15  at 4  pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FAIRWAY RESOLUTION LIMITED (FORMERLY DISPUTE RESOLUTION SERVICES LIMITED) v

HENSON [2015] NZHC 1563 [7 July 2015]

[1]      Submissions have been filed by counsel for the applicant in support of an application for the Court to fix costs in its favour following the hearing and issue of judgment dated 29 April 2015.

[2]      The key issue is that the application to set aside the statutory demand related to a notice that was the same as one which Mr Henson had previously issued in

2013.  Mr Henson withdrew that demand after being served with an application to set it aside.  The fact that Mr Henson withdrew the very same statutory demand on an earlier occasion before re-issuing it indicates, at the very least, that he has taken an unmeritorious position.   I agree with counsel for the applicant that he was in breach of r 14.6(3)(b)(ii).  I also accept that it is at least arguable that he acted in such  a  way  to  attract  an  award  of  indemnity  costs  under  r 14.6(4)  for  acting “vexatiously, frivolously, improperly or unnecessarily…”.

[3]      However, having regard to the fact that if an indemnity costs order were made Mr Henson would end up paying in excess of $32,000 I take the view that making such an order is not an attractive outcome.  Although I have no information concerning Mr Henson’s financial circumstances my judgment is based upon the material that was placed before the Court by evidence on the hearing of the application that he is not a man of extensive means.  Overall I consider that fairness between the parties can be achieved by awarding scale 2B costs with an uplift of

50% for a total of $18,139.50.  That figure includes disbursements.  The order of the

Court is accordingly that Mr Henson is to pay the sum of $18,139.50 in costs.

J.P. Doogue

Associate Judge