Leef v Bidois - [2013] NZHC 2605

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2012-470-000461 [2013] NZHC 2605

UNDER the Arbitration Act 1996

IN THE MATTER

of an Arbitration Award dated 23 March
2012

BETWEEN

RAPATA (ROBERT) LEEF & ORS Applicants

AND

COLIN BIDOIS & ORS Respondents

Hearing: On the papers.

Counsel:

S P Bryers for Applicants
M J Sharp for Respondents

Judgment:

8 October 2013

JUDGMENT OF ANDREWS J [Costs (No. 2)]

This judgment is delivered by me on 8 October 2013 at 10am pursuant to r 11.5 of the High Court Rules.

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

Solicitors/Counsel:
Martelli McKegg, Auckland (for Applicants) Holland Beckett, Tauranga (for Respondents) FMR Cooke QC, Wellington (for Respondents)

LEEF & ORS v BIDOIS & ORS – Costs (2) [2013] NZHC 2605 [8 October 2013]

[1] In my judgment as to costs in this proceeding, I held that costs should be fixed in this Court (“the costs judgment”).1 In reaching that conclusion, I rejected the submission made on behalf of the respondents that costs should be reserved, to be addressed after the outcome of the respondent’s appeal to the Court of Appeal is known, because the “arbitration award” in dispute had been set aside on grounds not contended for by the applicants.2

[2] Counsel for the respondents was given leave to file submissions on the quantum of costs to be fixed, and counsel for the applicants was given leave to respond on behalf of the applicants.3

[3] In further submissions dated 30 September 2013, counsel for the respondents submitted that there should be no award of costs. It was submitted that:

2.1 the applicants applied to set aside an arbitration award which the
Court has found was not an arbitration award at all; and

2.2the basis upon which the Court reached its conclusion was not advanced by the applicants, who had agreed with the respondents that the requirements for meeting the definition of “arbitration agreement” were met.

[4] It was submitted that, in the circumstances:

… the only fair award is that costs should lie where they fall, given that the Court has effectively determined that the proceedings between the parties have failed, and that the applicants’ application as advanced on a misconceived basis.

[5] It was further submitted that the applicants had “failed in their claim” and that “the essential basis of the applicants’ decision [sic] was rejected by the Court”.

[6] In the alternative, it was submitted that if I were to reject the respondents’ submission that costs should lie where they fall, then an order should be made for a reduced order for costs pursuant to r 14.7(d), on the basis that the applicants have not
succeeded on the grounds advanced by them.

1 Leef v Bidois [2013] NZHC 2473, at [7].
2 At [3] and [4].
3 At [9].

[7] The respondents’ primary submission is, in effect, a repetition and expansion of the submission already made for the respondents, in the context of their contention that costs in this Court should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leef v Bidois

Details

AGLC: Leef v Bidois [2013] NZHC 2605
Case: [2013] NZHC 2605
Decision Date: 8 October 2013

CaseChat Overview and Summary

In the case of Leef v Bidois, the applicants sought an order setting aside an arbitration award, which was subsequently set aside by the Court. The respondents argued against the award of costs to the applicants, claiming that the applicants had failed in their claim and that costs should lie where they fall. The respondents also submitted that a reduced order for costs should be made under Rule 14.7(d), as the applicants had not succeeded on the grounds advanced by them. The applicants, on the other hand, argued that they had succeeded in their claim for an order that the award should be set aside.

The court considered the submissions made by the respondents and found that there was no basis for finding that the applicants had failed in relation to a cause of action or issue which significantly increased the costs of the respondents. The court rejected the respondents' primary and alternative submissions as to the quantum of costs and held that the applicants were entitled to costs in the sum of $35,123.50, together with disbursements of $9,852.19 and witness expenses of $350. The total amount payable by the respondents was $45,325.69.

In conclusion, the court found in favour of the applicants and ordered the respondents to pay costs to the applicants in the sum of $35,123.50, together with disbursements of $9,852.19 and witness expenses of $350. The total amount payable by the respondents was $45,325.69. The court rejected the respondents' submissions that costs should lie where they fall or that a reduced order for costs should be made.

Orders