Forward Specialties 1988 Limited v Alexander HC Auckland CIV-2008-404-002981 - [2011] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-002981

BETWEEN FORWARD SPECIALTIES 1988
LIMITED Plaintiff

ANDWILLIAM JOHN ALEXANDER AND COLLEEN ELIZABETH ALEXANDER Defendants

Hearing: On the papers

Counsel: L Ponniah for Plaintiff
RE Harrison QC for Defendants

Judgment: 4 March 2011 12:00:00

JUDGMENT OF RODNEY HANSEN J As to costs

This judgment was delivered by me on 4 March 2011 at 12.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Corban Revell, DX DP92558, Auckland for Plaintiff
Sione Fonua, P O Box 91787, Auckland for Defendants

FORWARD SPECIALTIES 1988 LIMITED V WILLIAM JOHN ALEXANDER AND COLLEEN ELIZABETH ALEXANDER HC AK CIV-2008-404-002981 4 March 2011

[1] The plaintiff sought specific performance of an agreement for the sale of a workshop business sold to the defendants which the defendants had purported to cancel. In the alternative, they sought an enquiry into damages. In my judgment of
30 October 2009 I found the defendants wrongfully repudiated the agreement. I decided that an order for specific performance was not appropriate in the circumstances and that the plaintiff’s remedy should be by way of damages. A further hearing to determine quantum was arranged but did not proceed as the parties were able to agree on the damages to be paid.

[2] The plaintiff seeks an order for costs. The defendants oppose the order sought. They contend that the way in which the plaintiff approached the claim warrants either a reduction in the costs overall awarded in respect of the liability hearing or a refusal to award costs in relation to the damages hearing. In addition, the plaintiff takes issue with individual items claimed.

Overall approach

[3] Mr Harrison questions whether the plaintiff should be entitled to costs on the basis that there were two separate stages to the proceedings, one directed to liability and the other directed to quantum. He challenges that approach on the ground that the defendants successfully opposed the plaintiff’s claim for specific performance of the agreement for sale and purchase and an agreement to lease workshop premises that was associated with it. He submits that had the plaintiff pursued the relief to which it was held to be entitled (damages) from the outset, there would have been no need for a further stage in the proceeding. Mr Harrison says that should be reflected in the costs outcome, either by awarding costs only in relation to the first hearing or by reducing the award in respect of that hearing by one-third or by some other appropriate measure.

[4] Mr Harrison’s argument overlooks the savings in time and cost that flowed from the decision to confine the first hearing to liability and the availability of

the considerable additional costs that would have been incurred if evidence bearing on damages had been called. The evidence would have been redundant if the plaintiff had failed on liability or succeeded on its claim for specific performance. I see no reason to deny the plaintiff the full costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forward Specialties 1988 Limited v Alexander HC Auckland CIV...

Details

AGLC: Forward Specialties 1988 Limited v Alexander HC Auckland CIV-2008-404-002981 [2011] NZHC 68
Case: [2011] NZHC 68
Decision Date: 4 March 2011

CaseChat Overview and Summary

The case involved a dispute between Forward Specialties 1988 Limited and William John Alexander and Colleen Elizabeth Alexander. The plaintiff sought specific performance of a sale agreement for a workshop business, which the defendants had cancelled. The plaintiff also sought an enquiry into damages as an alternative remedy. In a previous judgment, the court found the defendants had wrongfully repudiated the agreement, ruling that specific performance was not appropriate. The parties then agreed on the amount of damages to be paid. The plaintiff now sought an order for costs, which the defendants opposed, arguing that the plaintiff's approach to the claim warranted a reduction in the costs awarded for the liability hearing or a refusal to award costs for the damages hearing. The plaintiff also disputed some individual costs claimed.

The court considered the defendants' argument that the plaintiff should not be entitled to full costs due to the two separate stages of the proceedings, one for liability and the other for quantum. The defendants argued that had the plaintiff pursued damages from the outset, there would have been no need for a second stage in the proceedings. However, the court found that the decision to confine the first hearing to liability saved time and costs, and that the evidence would have been redundant if the plaintiff had failed on liability or succeeded on its claim for specific performance. The court saw no reason to deny the plaintiff the full costs of the hearing and those costs to which it was entitled in relation to the proposed damages hearing.

The court also considered the defendants' complaints about the time claimed for the preparation of briefs and lists of issues and bundles of documents for the second hearing. The court agreed that the time claimed was out of proportion, as the plaintiff provided only one brief of evidence and a small bundle of documents. The court allowed half a day for each of these items. Finally, the court found that there was no basis for an allowance under item 6 of Schedule 2, as judgment was obtained by means of the consent memorandum.

The court allowed costs in accordance with the amended schedule annexed to the memorandum of the plaintiff's counsel, in the sum of $1,795.16.

Orders