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  reserved.    I  do  not  accept  the submission.

[8]      The  applicants  sought  an  order  setting  aside  the  order  made  by  Messrs Hingston and Wawatai.4    An order was made to that effect, in the substantive judgment.5

[9]      I  am,  of  course,  aware  that  the  respondents  have  appealed  against  the substantive judgment.  Whether I was correct in making an order setting aside the award is now a matter to be determined by the Court of Appeal.  However, at this stage I am not persuaded that there is any basis on which I could find that the applicants did not succeed in their claim for an order that the award should be set aside.

[10]     I turn now to the respondents’ alternative submission, that a reduced order for

costs should be made.  Rule 14.7(d) provides:

14.7     Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

…

(d)      although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly

increased the costs of the party opposing costs;

…

[11]     The submissions for the respondents do not identify or establish any grounds for a reduction of costs.  In particular, there is no evidence or submission that would support a finding that the applicants had “failed in relation to a cause of action or issue which significantly increased the costs of” the respondents.

[12]     Accordingly, I reject the respondents’ primary and alternative submissions as

to the quantum of costs.   I note that the respondents accept that the applicants’

4      See Leef v Bidois [2013] NZHC 1349, at [24].

5      At [71]–[73] and [130].

calculation of scale costs at $35,123.50 is appropriate, and that they do not challenge the claim for disbursements and witness expenses.

Result

[13]     The respondents are ordered 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 is $45,325.69.

Andrews  J