Main Rd Holdings Ltd v Thor Construction Group Ltd

[2020] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-735

[2020] NZHC 929

BETWEEN

MAIN RD HOLDINGS LTD

Plaintiff/Respondent

AND

THOR CONSTRUCTION GROUP LTD

Defendant/Applicant

Counsel:	J McDougall and M Chester for the plaintiff/respondent D Abricossow for the defendant/applicant
Judgment:	6 May 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    In my substantive judgment in this matter dated 15 April 2020 I dealt with an application by the defendant for an order staying this winding up proceeding and prohibiting advertising. I concluded that the defendant was entitled to the orders its sought, but only if it paid an undisputed component of the claim amounting to something a little short of $20,000. Accordingly, I made an order staying the proceeding and prohibiting the advertising of the same, but contingent upon the defendant paying that undisputed amount, which I now understand it has done.

[2]In the final paragraph in my judgment I said:

[40] Costs are reserved. I have not heard from counsel in relation to these. My preliminary view is that by applying to the Court for the orders it has without first paying the undisputed debt, TCG [the defendant] has disentitled itself to a costs order, even although it might claim to be the successful party. On that basis, it appears to me that the proper order in this case may be that costs are left to lie where they have fallen. If, however, even with the benefit of that indication, counsel are unable to settle costs, they may come back to the Court by memorandum in the usual way.

MAIN RD HOLDINGS LTD v THOR CONSTRUCTION GROUP LTD [2020] NZHC 929 [6 May 2020]

[3]    Counsel have indeed been unable to resolve costs, and have now come back by memorandum. I have a memorandum from Mr Abricossow dated 30 April 2020 and a memorandum in reply from Mr McDougall dated 5 May 2020.

[4]    The defendant informs me that there was an exchange of correspondence between the parties’ solicitors prior to the matter proceeding to a hearing. He submits that the fact that the defendant made a settlement proposal in a letter from its solicitors to the plaintiff’s solicitors dated 27 February 2020, headed “Without Prejudice Except as to Costs” in which the defendant offered to settle the entire dispute for $21,000 places a different complexion on things.

[5]    I cannot see the force in that submission. Had the defendant paid or offered to pay the undisputed component of the alleged debt (even without an additional offer to meet the plaintiff’s costs to date) if the plaintiff agreed to withdraw any threat of winding up proceedings and allow the disputed component of the debt to go to trial in the usual way, that may well have affected my view of costs. Then, the defendant would have made an offer which was as good as the outcome it achieved at trial.

[6]    But the offer made by the defendant’s solicitors in their letter of 27 February 2020 would have been substantially to its advantage when compared with the outcome it achieved at trial.

[7]    Nothing in Mr Abricossow’s memorandum of 30 April 2020 persuades me to a different view from that expressed at para [40] of my judgment.

[8]    In short, I remain of the view that the interests of justice will best be served in this case by declining to make any costs award thus allowing costs to lie where they have fallen. Accordingly, I decline to make any costs order.

Associate Judge Johnston

Solicitors:

Holland Beckett, Tauranga for the plaintiff/respondent Morrison Kent, Wellington for the defendant/applicant