Leef v Bidois
[2013] NZHC 2473
•23 September 2013
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV 2012-470-000461
[2013] NZHC 2473
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 FMR Cooke QC for Respondents |
Judgment: | 23 September 2013 |
JUDGMENT OF ANDREWS J
[Costs]
This judgment is delivered by me on 23 September 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) [2013] NZHC 2473 [23 September 2013]
[1] On 10 June 2013 I delivered judgment in this proceeding, and granted the applicants’ application to set aside an “arbitration award”.1 I note that the respondents have appealed to the Court of Appeal against the judgment.
[2] The parties have not been able to agree as to costs and have filed memoranda, pursuant to the direction at [131] of the judgment. On behalf of the applicants, Mr Bryers submits that the applicants succeeded in the proceeding and are, therefore, entitled to costs. For the respondents, Mr Cooke submits that costs should be reserved pending the outcome of the appeal.
[3] Mr Cooke made two principal submissions. The first was that the question of costs was “difficult” in that the “arbitration award” was set aside on grounds not contended for by the applicants. He submitted that the applicants and the respondents had proceeded on the basis that there was a “defined legal relationship” between the parties and, therefore, the “arbitration award” was an award made pursuant to the Arbitration Act 1986. Mr Cooke’s second submission was that “there were additional relevant facts and circumstances that had not been placed before the Court because it was not anticipated that the issue of a defined legal relationship would arise”. Mr Cooke submitted that the “complexity surrounding the matter” suggested that there is a real prospect that the outcome of the appeal might lead to a change. He submitted that costs would be better addressed after the outcome of the appeal is known.
[4] Regarding Mr Cooke’s first submission, Mr Bryers submitted that the issue of whether the decision at issue in the proceeding was an award made pursuant to the Arbitration Act, and the issue of whether the parties were in a defined legal relationship, were first raised in the course of the applicants’ opening submissions. I note that the issue as to the nature of the decision at issue in the proceeding (in particular as to whether it was an ‘arbitration award’ under the Arbitration Act), is referred at [30] to [33] of the judgment. I also note that at [73] to [128] of the judgment the applicants’ arguments as to impartiality and independence, and breaches of natural justice (the grounds on which the applicants had sought to have the “arbitration award” set aside) are discussed. I do not accept Mr Cooke’s
1 Leef v Bidois [2013] NZHC 1349.
submission that a decision on costs should be reserved on the basis of his first submission.
[5] Turning to Mr Cooke’s second submission, I accept Mr Bryers’ submission that any “new material” that the respondents believe they could have relied on at the hearing is now a matter for the Court of Appeal.
[6] I also accept Mr Bryers’ submission that the fact that the respondents believe they have grounds for appeal is not a reason for costs in this Court to be reserved. I accept that in this case, this Court should follow the normal course of fixing costs, rather than reserving them.
[7] Accordingly, I am satisfied that costs should be fixed in this Court.
[8] I note Mr Cooke’s submission (at paragraph 10 of his submissions) seeking leave “to file further submissions on the appropriate approach to costs on the basis of the existing High Court judgment”, in the event that this Court was not prepared to reserve costs.
[9] In this respect, I note that the applicants have sought costs on a 2B basis, resulting in a claim for $35,123.50 for scale costs, $9,852.19 for disbursements, and
$350 for witnesses expenses (a total $45,325.69). Mr Cooke may file submissions on the quantum of costs to be fixed, such submissions to be filed and served within one week. Mr Bryers may file and serve any reply submissions within a further week. In the event that the quantum of costs is not disputed by the respondents, then costs will be awarded in the sum sought by the applicants.
Andrews J