Immigration Advice New Zealand Limited v Sales Navigator Limited

[2024] NZHC 260

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-823

[2024] NZHC 260

BETWEEN

IMMIGRATION ADVICE NEW ZEALAND LIMITED
Applicant

AND

SALES NAVIGATOR LIMITED

Respondent

Hearing:

On the papers

Appearances:

K Robinson for the Applicant

No submissions by the Respondent

Judgment:

22 March 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Costs]

This judgment was delivered by me on    22 February 2024    at   3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Wynyard Wood (Karl Robinson), Auckland, for the Applicant

Copy for:

Ormiston Legal (Gautam Jindal), Auckland, for the Respondent

IMMIGRATION ADVICE NEW ZEALAND LIMITED v SALES NAVIGATOR LIMITED [2024] NZHC 260

[22 March 2024]

Introduction

[1]                 On 28 November 2023 Associate Judge Sussock issued a judgment granting Immigration Advice New Zealand Limited’s (the applicant) application to set aside the statutory demand issued by Sales Navigator (the respondent) (the Judgment).

[2]                 At [56] of the Judgment, Her Honour recorded her “preliminary view that increased costs may be appropriate as there appears to have been a clear dispute prior to service of the statutory demand and an application to the Disputes Tribunal would have been a more efficient and appropriate way of resolving the issues.”

[3]                 The Judgment invited the parties to confer and only file memoranda if no agreement could be reached. On 11 December 2023, the applicant sent an email to the respondent’s solicitors seeking agreement on costs, to which there has been no response. As a result the applicant is also claiming costs as to the memorandum as to costs.

Costs sought by the Applicant on a 2B basis with uplift

[4]                 The applicant is seeking scale costs on a 2B basis, together with disbursements, and an uplift on scale costs of either 50 per cent or 75 per cent.

[5]                 The applicant submits that costs should follow the event as the applicant was successful under the Judgment, and costs should be awarded on a 2B basis.

[6]                 The applicant also seeks increased costs. The applicant submits that increased costs are commonly awarded where statutory demands are incorrectly issued, as recently confirmed in Lumen Business Solutions Ltd v Wallace Corporation Ltd.1 The applicant submits costs can be uplifted in various circumstances including when the statutory demand was issued inappropriately because the issuer knew or ought to have known of a genuine dispute, as is the case here.

1      Lumen Business Solutions Ltd v Wallace Corporation Ltd [2023] NZHC 3030, at [17] to [19].

Settlement offers

[7]                 The applicant also submits that the various settlement offers which were made by the applicant and rejected by the respondent were relevant to determining increased costs. The applicant made multiple offers to settle this mater, none of which were successful. These were:

(a)the applicant wrote to the respondent on 21 April 2023, advising the debt was disputed, and requesting the statutory demand be withdrawn. This offer was rejected;

(b)an offer to settle by payment of $750.00 was also rejected on 21 April 2023;

(c)an offer to settle by payment of $3,000 plus GST was made on 12 May 2023 and rejected.

(d)an offer was made on 5 July 2023 to settle on the basis it would pay the respondent for certain work that it acknowledged was not disputed, the respondent would pay the applicant costs of $5,736.00 and the remainder of the amount claimed by the respondent could be referred to the Disputes Tribunal, where the parties could litigate the merits of the matters in dispute. That offer was also rejected.

Result

[8]                 The statutory demand procedure should only be invoked for debts that are due and owing. It is well established law that the statutory demand should not be issued where there is a genuine dispute regarding the debt known to the respondent. It is clear from the Judgment that Associate Judge Sussock was of the view that the genuine dispute was known to the respondent before issuing the statutory demand and accordingly the statutory demand was inappropriately issued.

[9]                 It is appropriate to award the applicant 2B costs with a 50 per cent uplift and I make an order below accordingly.

Orders

[10]             I order the respondent pay the applicant costs calculated on a 2B basis, together with a 50 per cent uplift, totalling $20,793.00 together with disbursements of

$1,234.50, totalling $22,027.50.

…………………………….. Associate Judge Taylor