Land Rover Parts Limited v Forward Specialties Limited HC Auckland CIV 2008-404-003242

[2008] NZHC 2504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-003242

BETWEEN  LAND ROVER PARTS LIMITED Plaintiff

ANDFORWARD SPECIALTIES LIMITED Defendant

Hearing:         4 July 2008

Appearances: J E Dorbiu for Plaintiff

P G Revell for Defendant

Judgment:      13 August 2008 at 2 pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 13 August 2008 at 2 pm, Pursuant to Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date……

Counsel/Solicitors:           S T Fonua, PO Box 91-787, Ponsonby, Auckland

Corban Revell, PO Box 21-180 Waitakere, Auckland

LAND ROVER PARTS LIMITED V FORWARD SPECIALTIES LIMITED HC AK CIV 2008-404-003242  13

August 2008

[1]      On 4 July 2008 I dismissed an application by the plaintiff to set aside a statutory demand issued by the defendant because the application was made out of time. On the dismissal of the application, the question of costs was reserved.

[2]      Both counsel have filed memoranda relating to the question of costs.

[3]      The defendant seeks costs assessed on a full indemnity basis. The statutory demand was issued to enforce money due under a lease. In terms of the lease, the plaintiff agreed inter alia to pay the defendant’s legal costs as between solicitor and client of and incidental to the enforcement or attempted enforcement of the defendant’s rights, remedies and powers under the lease.

[4]      Included in the costs being sought by the defendant, are the costs involved in preparing and serving the statutory demand.

[5]      The plaintiff submits that there should be no order for costs because the defendant should not have issued the statutory demand there being a genuine dispute between the parties as to whether the monies claimed in the statutory demand are due and owing. It is pointed out that that dispute is the subject of proceedings pending in the Waitakere District Court.

[6]      I am satisfied that the defendant is entitled to costs. The application to set aside the statutory demand was obviously out of time. The defendant incurred unnecessary costs in opposing the application. There are no grounds to justify departure from the general principle set forth in r 47 that the party who fails should pay the costs of the successful party.

[7]      However, I am not persuaded that the plaintiff should pay full indemnity costs. There may be some basis upon which the plaintiff can maintain that there is a genuine dispute as to the money owing. If that is correct, then it would be inappropriate to require the plaintiff to pay full indemnity costs incurred by the defendant in successfully defending an application to set aside the statutory demand because such application was made out of time. In the circumstances, the defendant

is entitled to costs on a 2B basis with disbursements as fixed by the registrar.

Associate Judge Robinson