ICL Construction (2016) Limited v Ian Roebuck Crane Hire Limited
[2022] NZHC 2899
•4 November 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2022-443-017
[2022] NZHC 2899
UNDER the District Court Act 2016 IN THE MATTER
of an appeal against a decision of the District Court at New Plymouth
BETWEEN
ICL CONSTRUCTION (2016) LIMITED
Appellant
AND
IAN ROEBUCK CRANE HIRE LIMITED
Respondent
Hearing: 19 October 2022 Counsel:
V A Whitfield and M Meier for Appellant I D Matheson for Respondent
Judgment:
4 November 2022
JUDGMENT OF CHURCHMAN J
[1] This proceeding relates to a contractual dispute between ICL Construction (2016) Limited (ICL), and Ian Roebuck Crane Hire Limited (Roebuck), relating to ICL’s hire of a crane from Roebuck.
[2] In a judgment of 23 August 2021, Judge Grieg addressed the issue of liability, holding that ICL was in fact liable to Roebuck for unpaid rental on the crane, leaving only the issue of quantum.1 In coming to that conclusion, the Judge considered that the evidence of Mr Cole Wenmoth, ICL’s shareholder and director, was not plausible.2
1 Ian Roebuck Crane Hire Limited v ICL (2016) Limited [2021] NZDC 16806.
2 At [31].
ICL CONSTRUCTION (2016) LIMITED v ROEBUCK CRANE HIRE LIMITED [2022] NZHC 2899 [4
November 2022]
[3] In a further judgment of 15 February 2022, Judge Grieg struck out three briefs of evidence filed by ICL as to quantum, broadly on the basis that they related to a defence that was not pleaded, and which had never been previously raised in the correspondence between counsel.3 ICL now appeals that decision, on the grounds that the decision was “based on several incorrect legal analyses and has resulted in a gross miscarriage of justice”.
[4] Roebuck opposes the appeal, saying that the Judge did not err, and that to allow the appeal would constitute a substantial misjustice.
[5] For the reasons below, I have come to the view that the appeal should be dismissed.
Factual background
[6] In September 2017, ICL hired a crane from Roebuck. After some time, ICL stopped paying regular invoices for its use, and a dispute arose as to whether there was a binding estimate for the entirety of the services provided. Roebuck instituted proceedings in November 2020, seeking judgment in the sum of $64,098.00, plus interest and costs.
[7]Roebuck alleged that:
It was verbally agreed between the plaintiff (through Ian Roebuck) and the defendant (through Cole Wenmoth) that the plaintiff would supply a 100 tonne crane to the worksite and the defendant would be charged for the time when the crane was actually used based on the rate applicable for the weight of the crane that would normally be used for the work requested.
…
The times during which the crane was used by the defendant were recorded in a crane docket which included information relating to the date of use and the hours to be charged for. Such dockets were signed by representatives of the plaintiff and defendant at the conclusion of each period of use.
A copy of each docket was supplied to the defendant at the conclusion of each period of use which contained terms and conditions of hire on
3 Ian Roebuck Crane Hire Ltd v ICL Construction (2016) Ltd [2022] NZDC 1576.
the back of each docket. The terms and conditions of hire contained the written terms of the contract.
[8]In response, ICL pleaded that Roebuck had provided a binding estimate of
$215,000 for the entirety of the services provided, and that it was required to pay no more than the sum of that estimate. There was a further issue as to damage to concrete that could be attributed to Roebuck’s actions. Prior to the liability hearing, ICL advised the Judge that these were the only issues and that determining quantum, if necessary, would be a relatively simple exercise. For example, in an email between counsel prior to the liability hearing, counsel for ICL stated:
I think we both agree that if the issue of charge up or estimate is resolved then the actual quantum would become virtually academic. There are a few invoices that Ian Roebuck would have to admit were not charged up to ICL account or ‘authorised’ by [ICL]’s staff (like the Ultimate Concrete ones)…The other complaints on various invoices are minor and if the parties can’t resolve those then asking the Court to do so would be hugely uneconomic for $$ involved and that alone would encourage the parties to settle. If they can’t settle then at least the dispute would be so narrowed down to a low dollar value by that stage that the economic sense in settling that [remaining] minor difference would be glaringly obvious to both.
[9] As noted, the Judge determined the liability issue in late 2021, finding that Mr Wenmoth’s evidence as to an agreed binding estimate, was not plausible, and that ICL was liable to Roebuck. Not long after that hearing, ICL briefed further witnesses (Cole Wenmoth, Stuart Bailey and Phillip D’ath) with the purpose of providing a review of all invoices issued to them, so as to dispute quantum. They sought to argue that Roebuck “had not followed the contractual terms, that they had not charged the 100 tonne crane at the applicable rate for the job”.4 The Judge considered that this was contrary to their original position, which was that:
At no time when entering into the contract…did [ICL] discuss with [Roebuck] standard rates or any rates to be paid for craneage works for [the project].
[10] The evidence provided by ICL related to an examination of each individual invoice, and the provision of an opinion by an expert as to whether the job required the use of the 100 tonne crane provided or a smaller crane, meaning a lesser rate should have been charged. In response, Roebuck sought to have that evidence struck out on
4 Above n 3, at [22].
the basis that the issue as to charging the correct contractual rate was never pleaded, and that ICL should be estopped from advancing the defence.
District Court Decision
[11] The Judge relied on rr 1.3, 1.8(2), and 5.50 of the District Court Rules 2014, and Marley New Zealand Ltd v Skellerup Rubber Services Ltd5, to strike out ICL’s evidence. Rule 1.3 provides for the “just, speedy, and inexpensive determination” of proceedings. Rule 1.8(2) allows a Judge to set aside any step taken in a proceeding which fails to comply with the requirements of the Rules. Rule 5.50 contains the requirements for a statement of defence.
[12]His Honour stated:6
In a nutshell, the plaintiff has always claimed that it was verbally agreed Roebuck would supply a 100 tonne crane to the worksite and that the defendant would only be charged at the appropriate rate for the size of crane that would normally be used for the work requested. The defendant’s response was to deny this conversation at all and simply assert that he received a fixed estimate and that Roebuck offered nothing of the sort. Now the defendant admits to those being the contractual terms, but says they weren’t properly applied by Roebuck.
I have already found that the defendant’s account on this specific point was implausible. Mr Roebuck’s evidence was correct on this point.
…
For the statement of defence to now be advanced in support of the defendant’s contention, it should have set out some at least of the seven specific categories of alleged invoicing deficiencies now relied on. There is, however, no mention of the wrong crane tonnage rates having been used for particular jobs or the duplication of invoices in payment schedules, docket discrepancies or any of the other categories of complaint now raised.
Whilst I accept that the defendant’s counsel did make some reference to the wrong tonnage rates being an area of dispute in correspondence between counsel, the end position was that reached on 24 July, a position that reverts to the statement of defence and a positive assertion that there was only a few thousand dollars difference between the parties in terms of quantum.
5 Marley New Zealand Ltd v Skellerup Rubber Services Ltd [2013] NZHC 1653 at [17]–[19].
6 Above n 3, at [29]–[37].
[13] The Judge considered the consequences of allowing the additional quantum defence to go to a hearing, commenting that this would create prejudice to Roebuck in terms of delay and costs, stating:7
It would require two to three days of evidence, one, two or even three experts. The crane driver employed by Roebuck has, I am advised, now left the company’s employment. He would have to be tracked down. Of much greater difficulty however would be asking him if he can remember the dozens and dozens of times he used the crane on that particular job. That must be highly unlikely. This memory is important because, whilst on the face of it the expert has commented on the weight of the items lifted by the crane on particular occasions, weight alone is not enough to determine the appropriate crane use. Other factors such as the reach that is required [are] also important.
[14] Therefore, his Honour held that there had been a failure to comply with the requirements of r 5.50 and accordingly set aside the relevant briefs of evidence of Cole Wenmoth, Stuart Bailey and Phillip D’ath. His Honour held that ICL were estopped from advancing a defence as to quantum based on an allegation that Roebuck did not apply the appropriate craneage rates.8
[15] Finally, the Judge considered that it was appropriate to make orders for an interim payment, pursuant to rr 7.62 and 7.63(1)(c), stating:9
The plaintiff has a judgment against the defendant for damages yet to be assessed. A reasonable proportion of the damages that the plaintiff is likely to recover is in my assessment $60,000. This sum is to be paid to the plaintiff.
The defendant shall also pay the plaintiff’s costs to date for all the steps taken in the proceeding on a 2B basis.
The defendant shall also pay interest on the judgment, as sought in the statement of claim.
Procedural developments
[16] Since the decision, Roebuck have elected not to progress to the quantum hearing, but on 28 January 2022 issued a statutory demand and on 23 May 2022 filed liquidation proceedings.
7 At [38].
8 At [48].
9 At [54]–[56].
[17] ICL subsequently filed an application for a stay of execution of the District Court judgment, which was refused by Palmer J on 13 May 2022.10
[18] Also in the interim, Mr Wenmoth has sold ICL to Construction Group HQ Limited and has ceased trading. Mr Wenmoth is the director of Construction Group HQ Limited.
[19] The parties reached an agreement that Roebuck would stay any further proceedings in relation to the liquidation, and restrain publication of an advertisement relating to the liquidation, on the condition that a sum of $114,104.48 was paid to the Court by ICL. ICL has paid that sum to the Court.
Issues
[20]There are five issues for determination, being did the Judge err by:
(a)striking out the evidence of Cole Wenmoth, Stuart Bailey and Phillip D’ath;
(b)stating that “I estop the defendant from advancing a defence as to quantum based on an allegation that Roebuck did not apply the appropriate cranage rates”;
(c)awarding an interim payment; and
(d)awarding interest and costs.
Positions of the parties
ICL
[21] Counsel for ICL, Ms Whitfield, submits that the effect of the decision under appeal is that Roebuck has been granted the benefit of a final judgment, and that ICL has been deprived of an opportunity to be heard on the issue of quantum.
10 ICL Construction (2016) Ltd v Ian Roebuck Crane Hire Ltd [2022] NZHC 1047.
[22] Ms Whitfield submits that r 1.8 is generally relied on to correct issues of non- compliance and to exercise discretion in favour of the non-complying party. She says that a liberal approach is appropriate, in order to prevent injustices caused by “mindless adherence to technicalities”.11
[23] She says that ICL’s statement of defence denied liability, and that as Roebuck’s statement of claim did not plead how its claimed amount was calculated by reference to the specified standard rates, ICL was not required to plead to that, so it did not. She submits that ICL’s statement of defence answered Roebuck’s claim as pleaded, and that therefore the non-inclusion of the defence as to quantum was a result of Roebuck’s failure to particularise its entitlement to the claimed amount on the basis of the pleaded contractual terms. Ms Whitfield submits:
Roebuck would always have been required to prove that its charges were in accordance with the agreed terms of the contract. ICL simply provided evidence that the application of the contract terms was incorrect.
[24] She also submits that the Court had no jurisdiction to strike out ICL’s evidence, as r 1.8(4) provides that an application must be made within a reasonable time before the party applying has taken any fresh step after becoming aware of an irregularity. She says that as the statement of defence was filed on 1 February 2021, Roebuck was unable to make an application under r 1.8(4). Likewise, Ms Whitfield submits that the District Court had no ability to estop ICL from advancing a defence as to quantum, and that no authority was relied on by the Court or Roebuck to do so. Instead, she says the proper course was to grant leave for ICL to file an amended statement of defence, which would have caused no conceivable prejudice to Roebuck.
[25] Ms Whitfield submits that the procedural preconditions to making an order for an interim payment were not fulfilled by Roebuck, thereby causing substantial prejudice to ICL. She says the application was not supported by a sufficient affidavit stating the amount of the damages, debt, or other sum to which the application relates, and the reasons for making it. There was no attached documentary evidence relied on by Roebuck. Ms Whitfield relies on Bowen v Williams, in which the Court declined
11 Singh v Atombrook Limited [1989] 1 All ER 385 (CA) cited with approval in Plateau Retail Services Limited v CBI Company Limited [2020] NZHC 1862.
to make an order for an interim payment on the basis of a failure to provide documentary evidence.12 She says that Roebuck was also required to provide evidence of its ability to repay in its affidavit, which it did not do so.
[26] However, Ms Whitfield submits that if Roebuck is found to be entitled to an interim payment, ICL does not take issue with interest being awarded, but argues that it is only on the amount of the interim payment, only from the date of the order, and only in accordance with the Interest on Money Claims Act 2016, rather than any alleged contractual term. She submits that Roebuck appears to have calculated interest on the basis of the terms on the back of the crane use dockets but that such terms were never agreed to by ICL. She says that the order of the District Court granting interest to Roebuck was unclear, and that the interest could not be awarded on the basis of the crane dockets, where there was no substantive finding that those terms formed a part of the agreement under which ICL was liable. She says that interest should only accrue from the date of the award of an interim payment.
[27] As to costs, Ms Whitfield says that there is no known authority addressing where an award of costs in the entire proceeding is awarded to a successful party on an application for an interim payment. She submits that r 14.8 is limited to “costs on an opposed interlocutory application” and that the merits of an application and the merits of the substantive proceeding are different matters. She says that the Judge erred in awarding costs for all the steps in the proceeding.
Roebuck
[28] Counsel for Roebuck, Mr Matheson, alleges that Mr Wenmoth has manoeuvred to dissipate ICL’s assets with the intent to reduce Roebuck’s ability to enforce what is owed by ICL. He says:
Despite ICL apparently being a shell company of no value, ICL, by this appeal, expects the Courts and Roebuck to continue with time consuming and expensive litigation. It is inevitable that Roebuck will never recover the costs in successfully opposing ICL’s stay application…any costs awarded in relation to this appeal…the amount of any further judgment…[and] the substantial costs it stands to be awarded if ICL is allowed to pursue its un- pleaded quantum [defence].
12 Bowen v Williams (1993) 5 PRNZ 721 at p 729.
[29] Mr Matheson submits that it would be a serious injustice for Roebuck to be put through a further period of costly litigation without the protection afforded by the interim payment order. He says that ICL has fully and comprehensively litigated its claim, and failed in doing so. He submits that ICL has now been prevented from introducing quantum evidence, which is not relevant to its pleaded defence, contrary to its position at the liability hearing, and in contradiction with correspondence between counsel noted by the Judge. He says that the new defence would be time consuming, costly, and fraught with evidential difficulties.
[30] Mr Matheson says that the Judge’s decision was justified by the evidence and the Rules, and that the Judge had the benefit of having presided over the liability hearing, thereby being fully familiar with the background of the matter. He submits that ICL’s contentions as to the evidence available to the Judge on the application for an interim payment need to be considered in this context, and show that there was a basis for the sum of $60,000.00. He says the basis for that figure was an agreement between the parties of an unpaid invoice figure of $64,098.00. He says that the requirements of r 7.62(1) are established and that therefore the award of an interim payment was not in error.
[31] Mr Matheson submits that when the Judge stated that ICL was “estopped” from putting forward certain quantum evidence, he was doing nothing more than ruling that evidence inadmissible. He says that use the language of estoppel has no consequence, and is simply a matter of semantics. In any case, he says that ICL had opportunities to raise the invoice evidence previously, and did not do so. He submits that Roebuck pursued these proceedings on the basis that the primary issue was over liability, and that quantum was discussed as a minor issue. He says that it would be unconscionable at this late stage to allow ICL to pursue what is essentially an entirely new defence based on allegations not previously advanced.
[32] As to ICL’s criticism of the particularisation of the statement of claim, Mr Matheson submits that ICL has never previously asked for further particulars or made any criticisms of this kind. He says that ICL should have been aware of the nature of the amount claimed, given it was ICL who prepared payment schedules and
sought to avoid payment, and that it was ICL’s obligation to properly articulate its defence.
[33] Mr Matheson submits that the allegation that Roebuck should have challenged ICL’s statement of defence sooner is nonsensical. He says that initially Roebuck was happy to proceed on the basis of the statement of defence, and that their interlocutory application only became necessary when it was apparent that ICL intended to adduce evidence in support of an unpleaded defence. He says that r 1.8(4) is therefore not applicable, as their application was made as soon as it was necessary.
[34] As to costs and interests, Mr Matheson says that counsel for ICL were provided with Roebuck’s submissions and raised no objection to them, nor did they file submissions on costs or interest. He says that the ability of Roebuck to pay the interim sum if necessary was never in issue before the District Court, and that the Judge was entitled to assume that they were able to pay it. He submits that Roebuck was entitled to seek costs in relation to the liability hearing, and the strike out/interim payment application.
[35] Mr Matheson says that the award of interest on the basis of Roebuck’s standard contractual terms is supported by the evidence. ICL received 250 crane dockets with the standard terms on the back of them, without any objection or dissent.
[36] The amount of interest has been calculated by reference to a daily rate based on 1.5 per cent per month, on the $60,000 interim payment, from 1 March 2019, despite some unpaid invoices relating to earlier periods. He says:
…the overwhelming number of occasions ICL received Roebuck’s standard terms of trade without objection would rule out any conceivable argument that they were not binding in relation to the right to recover contractual interest. The applicable case law put before Judge Grieg included reference to the Seven Electrical case where standard terms of trade provided to a customer on only [eight] occasions was enough to establish a “course of dealing”.
[37] Mr Matheson seeks an order that the amount held by the Court is paid to Roebuck, and costs for the present matter in the sum of $16,969.00, including costs in relation to the failed stay of execution application made by ICL.
Approach to appeal
[38] Pursuant to s 124(2) of the District Court Act 2016, a party to a proceeding in the District Court may appeal to the High Court against the whole or part of a decision. General civil appeals are by way of rehearing.13 The appellant bears the onus of satisfying the appellate court that it should differ from the decision under appeal.14 In discharging that onus, the appellant must identify the respects in which the judgment under appeal is said to be in error.15 The appellate Court may arrive at its own assessment of the merits of the case.16
Analysis
Strike out of evidence
[39] In my view, the Judge was correct to strike out the relevant evidence, on the basis that it related to an unpleaded defence. Firstly, Ms Whitfield’s submissions in respect of the Court lacking jurisdiction to apply r 1.8 on the basis of r 1.8(4) are fundamentally misconceived. Rule 1.8(4) states:
The court must not set aside any proceeding or any step taken in a proceeding or any document, judgment, or order in any proceeding on the ground of a failure to which subclause (1) applies on the application of a party unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
[40] It is evident that Roebuck only made its interlocutory application after becoming aware of ICL’s intended quantum defence. It is difficult to see how Roebuck could have been expected to raise this issue any earlier, given that there was nothing in the statement of defence to suggest ICL would raise such a defence. The time between the filing of the statement of defence and the filing of the interlocutory application is irrelevant. On the words of r 1.8(4), a reasonable time runs only from when a party has become aware of the irregularity.
13 High Court Rules 2016, r 20.18.
14 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
15 At [4].
16 At [5]; see also High Court Rules 2016, r 20.19.
[41] The earliest Roebuck could have been aware of the quantum defence was 15 November 2021, the date upon which the relevant evidence was filed. Roebuck’s interlocutory application was filed on 30 November 2021. Therefore, the interlocutory application was filed some 11 working days after Roebuck could be taken to have notice of ICL’s intended defence. That is clearly within a reasonable time and before Roebuck had taken any fresh step. Accordingly, the Court did have jurisdiction to apply r 1.8(4).
[42] Ms Whitfield submitted that ICL’s failure to include its quantum defence in the statement of defence resulted from a failure by Roebuck to fully particularise its statement of claim. This submission must also fail for the following reasons:
(a)in my view, Roebuck fully particularised the nature of its claim in the statement of claim to a standard accepted by the Rules17 – it was not required to particularise its claim to the extent alleged by Ms Whitefield, nor anticipate what defence(s) might be raised by ICL;
(b)there is nothing in the statement of defence which indicates that ICL intended to use an alternative defence relating to Roebuck’s application of the contractual rates;
(c)alleging an agreed total estimate was the sole defence advanced at the liability hearing, and was found to be totally lacking in merit, being premised, as it was, upon implausible evidence;
(d)the correspondence between counsel indicates that prior to the filing of the briefs of evidence, counsel for ICL considered quantum to be an issue capable of being resolved by the parties informally;
(e)it was only after the liability hearing, and the giving of judgment that Roebuck became aware of the nature of the alleged defence as to quantum;
17 See District Court Rules 2014, rr 5.29 and 5.30.
(f)ICL never requested further particulars from Roebuck;
(g)the stated quantum defence relies entirely on a complete change in position by ICL from its statement of defence; and
(h)as submitted by Mr Matheson, and noted by the Judge, the new defence would be time consuming, costly and evidentially unmanageable.
[43]Accordingly, I accept Mr Matheson’s submission that:
ICL seems to be saying that having now received the benefit of Judge Greig’s determination regarding the nature of the contract, it can now restructure its defence to fit such [a] determination. This is not permissible under the rules, nor should it be.
Estoppel
[44] Ms Whitfield’s submissions on estoppel are similarly misconceived. Rule 1.8(2) provides:
Subject to subclauses (3) and (4), the court may, on the ground that there has been a failure to which subclause (1) applies, and on any terms as to costs or otherwise that it thinks just,—
(a)set aside, either wholly or in part,—
(i)the proceeding in which the failure occurred; or
(ii)any step taken in the proceeding in which the failure occurred; or
(iii)any document, judgment, or order in the proceeding in which the failure occurred; or
(b)exercise its powers under these rules to allow any amendments to be made and to make any order dealing with the proceeding generally as it thinks just.
[45] As I have already indicated, subs (4) has no application to the present matter. Neither does subs (3). Clearly then, pursuant to r 1.8(2), the Court had the power to set aside the evidence and make any order with the proceeding generally as it thought just. I am of the view that barring ICL from raising a quantum defence as to the contractual rates applied was well within the powers of the Judge, and appropriate in the circumstances.
[46] Granting leave to ICL to amend its statement of defence would not have been appropriate at such a late stage in the proceedings, in which ICL’s liability had already been determined on the basis of the statement of defence. Allowing an amendment would have had the effect of rendering the liability hearing a nullity, thereby causing prejudice to Roebuck in the form of the time and cost it took to bring that part of their claim to completion. I do not accept Ms Whitfield’s submission that allowing an amendment to be made would cause no conceivable prejudice to Roebuck.
[47] The wording of r 1.8(2)(b) is identical to the wording of r 1.5(2)(b) of the High Court Rules 2016. It is true that High Court possesses a wider and inherent jurisdiction than the District Court. However, I am satisfied on the bare wording of r 1.8(2)(b) that the Judge’s decision to ‘estop’ ICL from advancing a defence as to quantum on an allegation that Roebuck did not apply the appropriate contractual rates, was within the discretion available to his Honour. Nor did this prohibit ICL from raising a defence as to quantum in its entirety, as alleged by Ms Whitfield – but rather only a defence that Roebuck did not apply the appropriate contractual rates.
[48] It would indeed be unconscionable for ICL to now go back and run an unpleaded defence on an issue counsel represented would be able to be resolved informally. The fact that the Judge used the language of estoppel is neither here nor there. A consideration of whether or not to grant leave to amend pleadings requires the Court to look at all the circumstances.18 On my consideration of the circumstances, the Judge’s decision cannot be said to have been in error.
Interim payment
[49] The interlocutory application for the strike out of ICL’s evidence was accompanied by an affidavit of Ian Roebuck, Roebuck’s principal, dated 6 December 2021. I do not think that this application or its supporting affidavit and exhibits can be described in any way as being procedurally deficient. An application must be supported by an affidavit stating, “the amount of the damages, debt, or other sum to
18 Metroinvest Ansalt v Commercial Union Assurance Co [1985] 2 All ER 318 (CA).
which the application relates and the reasons for making the application” and accompanied by any documentary evidence relied on by the plaintiff.19
[50] Rule 7.62 provides that interim payments are a matter of discretion for the Courts:
(1)A Judge may make an order under subclause (2) if, on hearing the application, the Judge is satisfied that—
(a)the defendant against whom the order is sought has admitted liability for the plaintiff’s damages; or
(b)the plaintiff has a judgment against the defendant for damages to be assessed; or
(c)on a trial of the proceeding, the plaintiff would obtain judgment for substantial damages against the defendant or, if there are several defendants, against 1 or more of them.
(2)A Judge may, within the limits in subclause (3), order the defendant to make an interim payment of an amount that the Judge thinks just.
(3)The amount must not exceed a reasonable proportion of the damages the plaintiff is, in the opinion of the Judge, likely to recover after taking into account—
(a)any relevant contributory negligence; and
(b)any set-off, cross-claim, or counterclaim on which the defendant may be entitled to rely.
[51] Mr Roebuck’s affidavit, clearly states the amount of interim payment sought and identifies Roebuck’s reasons for seeking an interim payment, stating:
If the Court allows the Defendant to proceed with any defence as to quantum, even to a limited extent, I ask the Court to consider requiring the Defendant to pay the sum of $65,860.53 plus a reasonable contribution to costs into the Court. I do not think it is fair and reasonable that the Plaintiff should be put to the significant cost and expense of responding to quantum issues when the Defendant company is no longer trading and when there is a risk the Defendant may not be able to pay any judgment amount at some stage in the future.
[52] In Bowen v Williams the Court refused to award an interim payment on the basis that the evidence provided did not comply with the applicable rules. The
19 District Court Rules 2014, r 7.61.
affidavit in question did not include evidence that the plaintiff was in a position to repay the interim payment, and did not exhibit the relevant invoices.
[53] That case is not in any way applicable to the present matter. As submitted by Mr Matheson, the Judge had the unique benefit of presiding over both the liability hearing and the interlocutory application. Before the Court was evidence establishing that ICL was liable and that the parties had agreed on the outstanding amount in contention, being roughly $65,000. In such circumstances, the exhibiting of all of the relevant invoices was not necessary. When presented with the evidence, I am not satisfied that the Judge erred. His Honour had before him the requisite evidence to conclude that $60,000 would be an appropriate sum, and there was no indication that Roebuck would be unable to repay that figure.
[54] I am satisfied that Roebuck was entitled to the interim payment order sought. Accordingly, Roebuck’s application was not deficient and nor did the Judge err in granting it.
Interest and costs
[55] Contrary to Ms Whitfield’s submissions, the award of interest by the Judge was clear. His Honour stated, “The defendant shall also pay interest on the judgment, as sought in the statement of claim”.20
[56]The statement of claim contains the following passage as to interest:
An order, pursuant to section 9 of the Interest on Money Claims Act 2016, that the Defendant pay interest pursuant to Clause 19 of the Plaintiff’s terms and conditions of hire from the date of judgment to the date of payment on the sum of $64,098.00.
[57] The Judge was entitled to fix interest in accordance with the claim in the statement of claim.
[58] It would appear that ICL made no submissions to the contrary, and did not seek to contest Roebuck seeking an award of interest before the Judge in the District
20 At [56].
Court. Accordingly, I can see no error in the Judge’s decision as to the award of interest.
[59] The same can be said for costs. As accepted by Ms Whitfield, costs are fundamentally a matter of discretion for the Courts. In addition, being that Roebuck was successful in their claim as to liability, and their interlocutory application, they were undoubtedly entitled to seek costs in relation to those steps in the proceeding. The Judge did not err in awarding costs for all steps in the proceeding that had already occurred. Roebuck are now also entitled to seek costs in relation to the unsuccessful stay application and the present appeal. I award Roebuck scale costs for those matters as calculated at page 4 of their memorandum of 13 April 2022, in the sum of
$16,969.00.
Result
[60] The appeal is dismissed. I grant an order that the sum of $114,104.48 currently held by the Court be distributed to Roebuck, and that ICL pay costs in the sum of
$16,969.00 plus usual disbursements. Any outstanding interest and/or costs are to be paid by ICL to Roebuck directly. If counsel are unable to resolve the remaining issues as to quantum (if any) and/or costs, then they may file memoranda in the District Court seeking timetable directions for a quantum/costs hearing.
Churchman J
Solicitors:
C&M Legal, New Plymouth for Appellant
Connect Legal Taranaki, New Plymouth for Respondent
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