JNJ Holdings Limited v Kent Sing Trading Company Limited

[2020] NZHC 1385

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-000099

[2020] NZHC 1385

BETWEEN

JNJ HOLDINGS LIMITED

Plaintiff

AND

KENT SING TRADING COMPANY LIMITED

First Defendant

AND

QUOC THAI

Second Defendant

AND

LE QUAN WU

Third Defendant

Hearing:

(On the papers)

Counsel:

P Dalkie for the Plaintiff

M Black for the Defendants

Judgment:

19 June 2020

JUDGMENT OF MOORE J

[Interlocutory costs]

This judgment was delivered by me on 19 June 2020 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

JNJ HOLDINGS LIMITED v KENT SING TRADING COMPANY LIMITED & ORS [2020] NZHC 1385     [19 June 2020]

[1]                   On 21 December 2017, I gave judgment in the sum of $215,048.42 plus interest for JNJ Holdings Limited (“JNJ”) against three defendants in a lease dispute.1 I delivered my costs judgment for this matter on 9 August 2018.2

[2]                   A stay application in this proceeding was heard before Associate Judge Sargisson on 18 February 2019.3 She ordered a stay of both judgments pending an appeal to the Court of Appeal and an order setting aside a bankruptcy notice founded on the judgment pending appeal. On the matter of costs, she ordered:

“Costs on the present application are fixed on a 2B basis together with disbursements to be fixed by the Registrar. The incidence of those costs is reserved and shall follow the outcome in the Court of Appeal.”

[3]                   On 27 August 2019, a decision in the Court of Appeal was made in favour of JNJ.4

[4]                   JNJ now seeks costs on the interlocutory matter. They made submissions to the Court setting out a schedule of costs on a 2B basis, amounting to $12,667 and disbursements of $160.

[5]The defendant opposes JNJ’s application. In summary, their reasons follow:

(a)they made Calderbank offers to JNJ. These were provided to Associate Judge Sargisson during the interlocutory hearing;

(b)Associate Judge Sargisson’s order does not exclude the defendants from obtaining costs; and

(c)the Court of Appeal did not consider costs on the stay application and made further orders for costs in relation to the initial proceeding in the High Court.

1      JNJ Holdings Ltd v Kent Sing Trading Co Ltd [2017] NZHC 3274.

2      JNJ Holdings Ltd v Kent Sing Trading Company Ltd [2018] NZHC 2022.

3      JNJ Holdings Ltd v Kent Sing Trading Co Ltd [2019] NZHC 369.

4      Kent Sing Trading Company Ltd v JNJ Holdings Ltd [2019] NZCA 388.

[6]                   I do not accept these submissions. They are not consistent with the costs regime set out in the High Court Rules 2016. Associate Judge Sargisson ordered that costs would follow the outcome of the Appeal. JNJ were successful at that appeal. It would not be just for JNJ to be denied costs.

Result

[7]                   In respect of CIV-2015-404-000099 and CIV-2018-404-001839, JNJ is entitled to costs and disbursements of $12,867 claimable against Kent Sing Trading Company Limited, Quoc Thai, Le Quan Wu and General Goods Limited.

Moore J

Solicitors:

Mr Dalkie, Auckland Mr Black, Auckland