Kiwi Air Limited v UTS Geophysics Pty Limited
[2013] NZHC 3236
•5 December 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-416-000019 [2013] NZHC 3236
BETWEEN KIWI AIR LIMITED Plaintiff
ANDUTS GEOPHYSICS PTY LIMITED and GEOTECH AIRBORNE PTY LIMITED (trading as Aeroquest Airborne) Defendants
Hearing: 12 July 2013
Appearances: G A D Neil for plaintiff
Z G Kennedy/N R Frith for defendants
Judgment: 5 December 2013
JUDGMENT OF ASSOCIATE JUDGE ABBOTT
This judgment was delivered by me on 5 December 2013 at 12.30pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Meredith Connell, Auckland
Woodward Chrisp, GisborneMinter Ellison Rudd Watts, Auckland
Kiwi Air Limited v UTS Geophysics Pty Limited [2013] NZHC 3236 [5 December 2013]
[1] This proceeding concerns a dispute over payments claimed by the plaintiff (Kiwi Air) under an agreement for it to provide aircraft, pilots and associated services to the defendants (trading together as Aeroquest Airborne) for geophysical survey work in various parts of the world.
[2] Kiwi Air claims that Airborne Services owes it US$513,970.26 under the agreement.
[3] The defendants have challenged Kiwi Air’s entitlement to bring its claim in this Court. They have appeared under protest, to object to this Court’s jurisdiction. The issue before the Court is whether New Zealand is the appropriate jurisdiction.
Background
[4] Kiwi Air is an aviation services company. It is registered in, and operates from, Gisborne, New Zealand.
[5] The defendants are two of a group of companies) that undertake airborne geophysical surveys in several countries around the world. They are headquartered in Perth, Australia. For ease of reference I will refer to the defendants together as UTS.
[6] The parties entered into a written agreement (described as the operating agreement) dated 13 September 20111 under which Kiwi Air agreed to provide UTS with aircraft, pilots and associated services to enable it to carry out aerial survey work for its customers. For ease of reference I will refer to it simply as “the agreement”. Under the agreement Kiwi Air agreed to provide certain aircraft capable of carrying UTS’ equipment, and pilots with the requisite skills to operate the aircraft as directed by UTS for the purpose of its airborne survey work.
[7] The agreement identified2 four aircraft that Kiwi Air was to make available and the rate of charge for them. The aircraft were all registered in New Zealand with
1 Initially the agreement was with the first named defendant and another company, but under a later novation the parties became the plaintiff and the defendants.
2 In a schedule 8 to the agreement.
the New Zealand Civil Aviation Authority (NZCAA), and operated in the country of deployment under exemptions specifically arranged for the purpose of UTS’ work. The pilots were also licensed in New Zealand for the type of work to be undertaken and the aircraft to be used. In some cases UTS had to arrange for the pilots to be validated for work in a given country’s airspace.
[8] Kiwi Air was responsible for regular reports to NZCAA as part of the ongoing registration procedure by which the aircraft were able to fly in other countries, and for ensuring its pilots returned to New Zealand for regular medical checks.
[9] The agreement provided for hourly rates of remuneration whilst the aircraft was operating, including time spent getting to and from work locations, but also for a minimum monthly level of remuneration while the aircraft was away from its Gisborne base.
[10] Clause 11 of the agreement made provision for the possible addition of aircraft and (of particular significance in the dispute) for aircraft to be removed from the agreement on one month’s written notice. It reads:
11. Supply of Aircraft
This agreement will cover the aircraft listed in Schedule A. Schedule A may be modified by either party delivering written notice to the other party under the following terms:
i. Aeroquest Airborne may request that Kiwi Air add additional aircraft by specifying the type and desired specifications of the aircraft it wishes to utilise as well as the desired timing for delivery of the aircraft. Kiwi Air may in its sole discretion choose to supply such aircraft. If Kiwi Air elects to supply an additional aircraft it will use its commercially reasonable best efforts to secure such aircraft within the time frame set out in the Aeroquest Airborne request;
ii. Aeroquest Airborne may request that Kiwi Air remove an aircraft from its list by providing Kiwi Air with one (1) month’s written notice. In the event that Aeroquest Airborne removes an aircraft from the list, it will be responsible for the costs of returning the aircraft to Gisborne and back to its standard configuration; and
iii. Kiwi Air may remove any aircraft from its list by providing Aeroquest Airborne with one (1) month’s written notice if the aircraft in question is not then committed to any contract beyond that one (1) month period.
[11] The agreement also provided3 for termination on three months written notice, and for the governing law of the agreement to be “the laws of the Commonwealth of Australia”.4
[12] UTS provided the survey equipment and survey operators, and gave Kiwi Air schedules from time to time as to what aircraft were required where. It managed its side of the contract from its offices in Perth.
[13] Kiwi Air arranged for the aircraft to be flown to the location requested by the defendants and for pilots to travel to the work location as needed. It initially met landing, airway and parking fees and arranged required customs clearances, which it would then on charge to UTS with an agreed mark up. It was responsible for “maintenance, modifications and logistics” of the aircraft whilst operating under the agreement, which included keeping the aircraft in airworthy condition. It paid the pilots’ wages. All of this work was undertaken from Kiwi Air’s Gisborne office, with all aircraft movement tracked in real time by satellite. UTS communicated with
Kiwi Air at its Gisborne office in relation to all contractual matters.5
[14] The agreement provided for all payments to be made to Kiwi Air in US
dollars to a US dollar account in Kiwi Air’s bank in Hastings, New Zealand.
The present application
[15] The substantive dispute relates to monthly invoices issued by Kiwi Air for the provision of aircraft, pilots and ancillary services between September 2012 and January 2013. It largely turns on whether UTS gave proper notice to release aircraft
from the agreement, and whether work subsequently undertaken by one of the
3 Clause 9.
4 Clause 10.
5 UTS would communicate with Kiwi Air personnel at the location, but only on minor details of operational activity.
aircraft in Finland was undertaken under the agreement or under a separate arrangement taking effect after it was released:
(a) The agreement operated satisfactorily until the second half of 2012.
At that time UTS was using three aircraft to carry out survey work in
East Africa.6
(b)On 5 September 2012 UTS gave notice under clause 11(ii) releasing one of the aircraft (ZK-SWA) from the agreement as from 5 October
2012.
(c) At about the same time, but separately, UTS’ operations manager and one of Kiwi Air’s principals had a discussion about further work to be undertaken in Finland. Kiwi Air says that this led to a separate contract in relation to that work, after ZK-SWA was released from the agreement. The necessary equipment was put into the aircraft on 6
October 2012, and it left Tanzania for Finland on 8 October 2012. Kiwi Air has invoiced UTS accordingly on a stand-alone basis. UTS says the parties came to an understanding that another of the aircraft (ZK-FNZ) would be released instead of ZK-SWA, because the latter was more suitable for the work in Finland, and that the agreement (and particularly its payment terms) would continue to apply to ZK- SWA in relation to that work.
(d) It is common ground that UTS did not use ZK-FNZ after 5 October
2012. Kiwi Air says that at no time did UTS give contractual notice to release ZK-FNZ, and it was entitled to continue to charge for that aircraft in terms of the agreement. ZK-FNZ remained parked in Tanzania in October and November 2012 (and perhaps beyond November 2012). Kiwi Air has invoiced UTS on that basis. UTS says that Kiwi Air is not entitled to charge for ZK-FNZ after 5
October 2012.
(e) It is common ground that on 11 October 2012 UTS gave written notice of release of the third aircraft (ZK-XLB), which took effect from 11 November 2012.
(f) There are also disputes over the costs that Kiwi Air is seeking for the return of aircraft to New Zealand, and over release of UTS’ equipment from the aircraft after they were released from the agreement (UTS has threatened a counterclaim for this alleged delay).
[16] Kiwi Air has issued this proceeding claiming that UTS’ failure to pay the invoiced sums was a breach of the agreement. It served the proceeding on UTS in Australia, and claims that it was entitled to do so as of right. In response UTS filed an appearance under protest, raising several grounds, including that UTS is domiciled and has its place of business in Perth, and the agreement was entered into in Australia and was governed by Australian law. It maintained that Kiwi Air does not have an arguable case for serving the proceeding without obtaining leave of this Court, and that the Court should not assume jurisdiction because New Zealand is forum non conveniens.
[17] Kiwi Air has applied to set aside UTS’ appearance. It contends that it did not have to seek leave to serve UTS because it is seeking to enforce a contract that was to be performed in part in New Zealand. It also says that there is a serious issue to be tried on the merits, and New Zealand is the appropriate forum. It says further that the proceeding should be heard in New Zealand because it is a commercial contract contemplated by schedule 1 of the Trans Tasman Cooperation Act 2010 (which has come into force since the hearing).
[18] UTS has since accepted (at least for the purpose of this application) that Kiwi Air did not need leave to serve the proceeding in Australia as the agreement was performed in part in New Zealand, 7 and that there is a serious issue to be tried on the
merits.8 However it opposes the application on the ground that New Zealand is not
7 Thereby falling within r 6.27(2)(b)(iii) of the High Court Rules.
8 For the purposes of r 6.28(5)(b) of the High Court Rules.
the forum conveniens. It also says that the Trans-Tasman Proceedings Act 2010 is not relevant as it was not in force at the time of commencement of the proceeding.
[19] The sole issue for the Court, therefore, is whether New Zealand is the appropriate forum.
General principles
[20] Where a party served overseas, without the Court’s leave, protests the jurisdiction of the Court, the Court must dismiss the proceeding unless the party effecting service establishes a good arguable case for serving without leave and that the Court should assume jurisdiction:
6.29 Court's discretion whether to assume jurisdiction
(1) If service of process has been effected out of New Zealand without leave, and the court's jurisdiction is protested under rule 5.49, the court must dismiss the proceeding unless the party effecting service establishes—
(a) that there is—
(i) a good arguable case that the claim falls wholly within 1 or more of the paragraphs of rule 6.27; and
(ii) the court should assume jurisdiction by reason of the matters set out in rule 6.28(5)(b) to (d)....
[21] Accordingly, the Court is required to take a two stage approach:9
(a) A “threshold” enquiry as to whether there is a good arguable case that the claim falls within one of the paragraphs of r 6.27 of the High Court Rules; and
(b)If the threshold is met, then an enquiry as to whether the Court should assume jurisdiction by reason of the matters set out in r 6.28(5)(b) – (d):
(5) The court may grant an application for leave if the applicant establishes that—
...
(b) there is a serious issue to be tried on the merits; and
(c) New Zealand is the appropriate forum for the trial;
and
(d) any other relevant circumstances support an assumption of jurisdiction.
[22] The plaintiff has the onus of establishing these matters.
[23] Given the defendants acceptance that the agreement was part performed in New Zealand, and that there is a serious issue to be tried, the focus turns to whether this Court should assume jurisdiction. In assessing that question, the Court looks for the forum which has the most real and substantial connection with the dispute. That requires an assessment of a range of factors:10
[45] In considering whether another forum is more appropriate, the Court looks for the forum with which the proceeding has the most real and substantial connection. Relevant factors include issues of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business.
[46] We accept that other relevant considerations also bear on the issue of appropriate forum. These include the cautious approach already discussed to the subjection of foreigners to the jurisdiction of a New Zealand court; whether other related proceedings are pending elsewhere; whether the New Zealand court would provide the most effective relief or whether a foreign court is in a better position to do so; whether the overseas defendants will suffer an unfair disadvantage if a New Zealand court assumes jurisdiction; and any choice of jurisdiction previously agreed by the parties.
(footnotes omitted)
Assessment of the most real and substantial connection
[24] I will now address the various factors that the parties contend are relevant to this application.
Residence and place of business and place of entry into agreement
[25] I regard these factors essentially as neutral. Each party can argue a similar case based on residence and place of entry into the agreement (it is accepted that each party signed the agreement in its own country).
[26] Kiwi Air argued that its business was essentially New Zealand based. It administered its contracts from Gisborne, and all aircraft and pilots were based there or elsewhere in New Zealand. It contrasted that with UTS which operated in several countries around the world. Counsel for Kiwi Air submitted that the Court could place weight on the fact that UTS chose to enter into a commercial contract with a New Zealand party, with parts of the contract to be performed in New Zealand, and it was not unreasonable in those circumstances for the Court to assume jurisdiction
where the proceeding arises out of business activities undertaken in New Zealand.11
[27] I do not regard this last point as a factor for assuming jurisdiction. The converse applies equally, in that Kiwi Air chose to enter into the agreement with an Australian party, knowing that it had no business connections with New Zealand (UTS has no assets in New Zealand and does not carry on any business here) and that each party would be administering its side of the agreement from its own place of business.
[28] Counsel for Kiwi Air submitted that the Court should take into account that the competing jurisdictions were New Zealand and Australia, and relied on comments made by this Court in World Wide NZ LLC v Quay Park Arena Management Ltd12 that it would be foolish not to acknowledge the reality of close business ties between Australia and New Zealand. I do not see that that assists Kiwi Air. Those comments were made in the context of claims against two Australian companies who had sought to do business in New Zealand, together with a local company. There is no such suggestion in the present case that UTS was undertaking
business activities in New Zealand. The evidence is that UTS has conducted its
surveys in other countries (apart from Australia) but not in New Zealand.
11 Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No 2) [1989] 2 NZLR 50 (CA).
12 World Wide NZ LLC v Quay Park Arena Management Ltd [2008] 1 NZLR 106 (HC) at [68].
The matter in issue
[29] Before turning to consider what provision the parties made in the agreement for issues arising, it is useful to consider the substantive issue that needs to be determined.13 Kiwi Air argued that the matter in issue was enforcement of money due to it under the agreement, and the fact the payment was to be made in Gisborne was an important consideration.14 I do not see that as the issue in this case. Although UTS has not filed a statement of defence, it is clear from the evidence of correspondence between the parties that the issue is whether UTS is liable to make these payments. This is a matter of construction of the agreement, and whether or not valid notice has in fact been given to remove aircraft under clause 11(ii) of the agreement. Judged in that light, the focus will be on what is needed to establish liability. The place of payments to be made under the agreement is therefore not determinative in assessing which forum has the most real and substantial connection to the dispute. This leads me to the next point, namely what the parties provided in the agreement.
What the parties agreed – governing law
[30] The parties provided15 for their agreement to be governed by Australian law. This allows an inference, in the absence of contrary indicators, that the parties intended that their disputes would be resolved by an Australian court (there is no express provision in the agreement one way or the other).
[31] Although agreement on the governing law will not necessarily be decisive,16 in my view it is a significant factor in favour of a Court in Australia as the appropriate forum. As I have already said, one of the central issues in the case will be the interpretation of the agreement, particularly in relation to clause 11. Counsel for UTS submitted that a difference of judicial approach to contractual interpretation between Australian and New Zealand courts pointed towards the Australian courts as
the appropriate forum. He referred in particular to the willingness to admit
13 Turn & Wave Ltd v Northstar Accounts Pty Ltd HC Auckland CIV-2010-404-2268, 23 December
2010 at [82].
14 Relying on AIC Retail Finance Ltd v Savill [1986] 2 NZLR 679 (HC).
15 Clause 10 of the agreement.
16 Laws of New Zealand, Conflict of Laws: Jurisdiction and Foreign Judgments (online ed), at [31].
contextual material (including prior negotiations) as an aid to interpretation. The Supreme Court in New Zealand17 has relaxed the traditional rule that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract only if the language is ambiguous or susceptible to more than one meaning. This traditional rule is still applied by the High Court of Australia.18 Counsel for UTS submitted that the Australian courts were in the best position to interpret and apply Australian law, and all other things being equal it was preferable for the law of a given jurisdiction to be applied by the courts in that jurisdiction.19
[32] Kiwi Air submitted that even if there was an issue over the law to be applied, that could be done by the New Zealand courts, with expert evidence given as to Australian law if need be.
[33] The possible issue or issues of interpretation have not yet been identified, nor is it yet clear what evidence will be given by each side about the terms of the agreement. For that reason it is not possible to assess whether this Court would require expert evidence as to Australian law, or whether there would be competing evidence on the point. Equally, however, it would be preferable, should there be an issue, for any finding as to the state of the Australian law or the application of it to the facts of this case to be determined by an Australian Court.
[34] There is also a further consequence of this Court applying Australian law in the event of an appeal (given the amounts in issue in this case, that cannot be discounted as a possibility). Counsel for UTS submitted that a finding by this Court on Australian law would be treated as a question of fact in any appeal, with potential limitations on parties’ rights, compared to the matter being dealt with in an
Australian court:20
Apart from the general advantage which a foreign court has in determining and applying its own law, there is a significant difference in the position with regard to appeal. A question of foreign law decided by a court of the foreign
17 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [13] and [19].
18 Codelfa Construction Pty Ltd v State Royal Authority of NSW [1982] HCA 24, (1982) 149 CLR
337 at 352; reaffirmed in Western Export Services Inc v Jireh International Pty Ltd [2001] HCA
45, (2011) 86 ALJR 1 at [3]; see to similar affect D McLauchlan and M Lees “ConstructionControversy” (2011) 28 JCL 101 at .
19 Baxter v RMC Group plc [2003] 1 NZLR 304 (HC) at [247].
20 The Eleftheria [1970] P 94 at 105.
country concerned is appealable as such to the appropriate appellate court of that country. But a question of foreign law decided by an English court on expert evidence is treated as a question of fact for the purposes of appeal, with the limitations in the scope of an appeal inherent in that categorisation. This consideration seems to me to afford an added reason for saying that, in general and other things being equal, it is more satisfactory for the law of a foreign country to be decided by the courts of that country. Moreover, by more satisfactory I mean more satisfactory from the point of view of ensuring that justice is done.
[35] Counsel for Kiwi Air challenged this, relying on comments by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar21 that it was open to the appellate court to conclude that findings of fact were wrong, and to make its own assessment of the merits of the case.
[36] I do not regard those general comments of the Supreme Court (in a very different context) as intended to detract from the concern articulated in The Eleftheria. In circumstances where the dispute can be determined in the Australian courts, a risk of parties’ rights being compromised should be avoided, all other things being equal.
General caution about subjecting foreigners to local jurisdiction
[37] New Zealand Courts have traditionally been cautious about subjecting foreign defendants to New Zealand jurisdiction.22
[38] This factor is in favour of Australia as the appropriate forum, particularly having regard to the fact that UTS has no connection with New Zealand (it has no assets here, nor does it carry on any business here).
Location of parties, witnesses and evidence
[39] Although both counsel sought to argue that these factors favoured their respective clients, I regard them as neutral, save for the possibility of expert evidence
as to Australian law, which I will address under the next heading.
21 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [4] – [5].
22 Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300 at [30] – [31] and [43];
Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd, above n 9 at [27] – [28] and [46].
[40] As the central issues are likely to be the construction of the agreement, and what aircraft were removed from the operation of the agreement and when, it seems likely that the parties will be calling a similar number of witnesses, particularly to establish the contractual matrix and on the critical factual issue of whether there was an agreement to substitute ZK-FNZ for ZK-SWA as the aircraft to be removed from the agreement. It also seems likely that one of the parties and the parties’ witnesses will have to travel. The same applies to the location of the parties’ documentary evidence (held in their respective offices). There is no reason to place greater emphasis on one jurisdiction than another on this ground.
Relative convenience and expense
[41] I also find that this factor is evenly balanced, apart from the issue of expert evidence. Counsel for Kiwi Air submitted that at least some of UTS’s witnesses could be called by video link. However, that would equally apply to Kiwi Air’s witnesses if the matter was heard in Australia.
[42] I see the possible need for expert evidence on Australian law as a factor in favour of the matter being heard in an Australian Court. There will be no need to call expert evidence if the dispute is heard in Australia. Conversely, there will be additional cost, potentially for both parties, if the matter is heard in New Zealand, depending on whether there is in fact any disagreement over relevant law which requires experts to give evidence in person (including cross-examination). Although not a major factor, I consider that this favours an Australian Court as the appropriate forum.
Procedural advantages and disadvantages
[43] UTS says that the dispute can be determined just as well in the District Court of Western Australia as in the High Court in Gisborne. I accept that the District Court of Western Australia is an available forum with competent jurisdiction and is able to grant the monetary relief that Kiwi Air is seeking. There can be no suggestion that Kiwi Air would get a less just or fair hearing in that Court.
[44] I also accept that there is little to be lost by a transfer of the dispute at this early stage. There is no reason to prefer one forum over the other on this ground.
Other proceedings
[45] UTS has signalled an intention to bring its own claim against Kiwi Air for compensation for delay in releasing its survey equipment from aircraft. It had not done so by the time of the hearing. Counsel for Kiwi Air argued that this was simply a tactical position,23 and that there is no genuine intention to try the disputes in Australia. He also argued that any claim by UTS over the equipment was better determined in New Zealand, where the equipment was physically located at the time of the hearing.
[46] I take a view that the submission that this other claim is merely a tactical move is taking the matter further than the evidence permits. It is clear from the correspondence before the Court that UTS raised this issue at a relatively early stage, and indicated that the harm it was suffering was significant. I see no reason to believe that it is not genuinely intending to bring this proceeding, most likely by way of further defence to Kiwi Air’s claim. Fitzroy is distinguishable as the contract in that case was plainly a New Zealand contract, and the Court was able to find that proceedings commenced by the defendant in the United States were a tactical step to make it difficult for the plaintiff to prosecute its claim in New Zealand. The location of the equipment would be a factor favouring a New Zealand court if it was the only issue between the parties, but it appears to be inextricably linked to the terms of the agreement as to release of aircraft and return to New Zealand. I gather that the real issue is whether the equipment should have been released more quickly, rather than whether it is released before payment of the outstanding invoices, and that seems likely to be a matter of interpretation of the agreement. As these are matters pointing
both ways, I regard this as a neutral factor.
23 Relying on the comment of this Court in Fitzroy Engineering Ltd v Basic Senior HC Wellington
CP 258/95, 14 May 1996.
Enforcement of any judgment
[47] Any judgment that Kiwi Air was to obtain would have to be enforced in Australia, given that UTS does not have assets in New Zealand, nor operate here. Counsel for Kiwi Air sought to argue that this was a neutral factor as there are established mechanisms for enforcing judgments under the Foreign Judgments Act
1991 (Australia). I accept that the mechanisms exist, but they would add an additional layer of costs. There is a similar countervailing factor should Kiwi Air have to bring its claim in the Australian Court, and fail in that claim. In that event UTS could obtain an award of costs which it would then have to enforce against Kiwi Air in New Zealand (under a similar mechanism). Therefore I do not regard this factor as supporting one forum more than the other.
Other factors
[48] Counsel for Kiwi Air submitted that UTS should bear the costs and inconvenience of conducting the trial in New Zealand because it has not filed a defence in this proceeding. There is nothing in this submission. UTS is not required to file a defence until its protest to jurisdiction has been determined.
[49] Counsel for Kiwi Air also submitted that as this was a dispute arising out of a commercial contract, it fell within the nature of disputes to be facilitated for hearing in New Zealand in accordance with the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement concludes on 24 July 2008, and the Trans-Tasman Cooperation Act 2010 which implements this Agreement.
[50] Counsel for UTS submitted that the provisions of the Trans-Tasman Proceedings Act 2010 should not be taken into account on this application as they were not in force at the time of the hearing. They have since come into effect.24
[51] I am not persuaded that this Act determines the matter one way or the other. The cooperation intended by the agreement and reflected in the Act will be achieved
whichever jurisdiction provides the appropriate forum.
24 On 11 October 2013.
Conclusion
[52] Kiwi Air has the onus of establishing that this Court is clearly the appropriate forum. It has not done so. Weighing all of the factors discussed above, I find that they favour the Australian courts as the appropriate forum. There are no factors in this case which call for the dispute to be tried in New Zealand in the interests of justice.25
Decision
[53] Kiwi Air’s application to set aside UTS’s protest to jurisdiction is dismissed.
The proceeding is stayed.
[54] As the successful party, UTS is prima facie entitled to costs. I regard scale
2B as the appropriate basis, but as counsel did not address me on costs, I reserve leave for the parties to file memoranda if they cannot agree either on the incidence or the quantification of costs. UTS is to file and serve any memorandum within 15 working days. Kiwi Air is to file and serve any memorandum in response within a
further 5 working days.
Associate Judge Abbott
25 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL). See also Oilseed Products (NZ) Ltd v HE Burton Ltd (1987) 1 PRNZ 313 (HC) and Wing Hung Printing Co Ltd v Siato Offshore Pty Ltd, above n 9.
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