Hwadro International Trading Limited v Moa Brewing Company Limited

[2023] NZHC 3420

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-255

[2023] NZHC 3420

BETWEEN

HWADRO INTERNATIONAL TRADING LIMITED

Plaintiff

AND

MOA BREWING COMPANY LIMITED

Defendant

Hearing:

(On the papers)

Appearances:

P S Kim for Plaintiff

G D Simms and N F D Moffatt for Defendant

Judgment:

29 November 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

This judgment was delivered by me on 29 November 2023 at 11:30am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

……

HWADRO INTERNATIONAL TRADING LIMITED v MOA BREWING COMPANY LIMITED [2023] NZHC 3420 [29 November 2023]

[1]    On 13 September 2023, I released a decision in respect of the application by Moa Brewing Company Limited (Moa) to strike out Hwadro International Limited (Hwadro)’s claim, or for summary judgment, or for security for costs.1 I concluded the judgment by saying that while the strike out and summary judgment applications were dismissed, at the end of the day Moa had been largely successful in its challenge to the pleadings as they stood at that time.   I granted Moa’s application for security.  I directed that while submissions on costs might be filed, if none were filed, Moa would be entitled to costs on a 2B basis.

[2]    The Registrar has just referred to me the memoranda on costs that were filed by the parties on 20 September 2023. I apologise to the parties for the delay in their costs submissions being dealt with, but as I have said, they have only just been referred to me.

[3]    Having reviewed the conclusions in the judgment,  I  remain  of  the  view that Moa was successful in its challenge to the pleading as it stood. I was clear at [49] that Hwadro’s claim must be repleaded. This was a case of a defective pleading, albeit one that was not a write-off. Hwadro avoided its claim being struck out by a narrow margin.

[4]Moa was successful in its application for security.

[5]    Accordingly, I do not accept the submission of Mr Kim, counsel for Hwadro, that Moa’s primary application, that is for strike out or for summary judgment, was unsuccessful. Moa was able to establish that Hwadro’s claim as it stood would not succeed, but I concluded it might be saved by being repleaded. I note no new statement of claim has been filed.

[6]I do not accept Mr Kim’s submissions that costs should lie where they fall.

[7]    Accordingly, there is an order that Hwadro is to pay Moa costs on a 2B basis. I do not allow three allowances for the three applications. There is merit in Mr Kim’s submissions that all three applications were made in the one document. I award one

1      Hwadro International Trading Ltd v Moa Brewing Company Ltd [2023] NZHC 2555.

allowance for the filing of an interlocutory application plus 50 per cent to recognise the application covered three separate applications.

[8]Mr Kim did not take issue with any other aspect of the costs schedule.

[9]    Accordingly, the costs award is $9,440.50. That figure is arrived at by taking the total of 2B costs from the schedule of Mr Simms, counsel for Moa; removing three allowances for three interlocutory applications, that is a total of $4,302.00 but adding back in an allowance for one interlocutory application with an uplift of 50 per cent for the reasons I have given.

[10]Disbursements as claimed are not in issue.

[11]Accordingly, the total award of costs and disbursements in favour of Moa is

$9,990.50. Counsel for Moa, while content to seek costs on a 2B basis, wished to reserve Moa’s position that it could claim indemnity costs pursuant to its contract with Hwadro.

[12]   I reserve leave for Moa to seek further costs in respect of this application should it be established that Hwadro breached its contract with Moa by bringing these proceedings.

Associate Judge Lester

Solicitors:

Glaister Ennor, Auckland (for Plaintiffs) Wynn Williams, Auckland (for Defendants)