Modern Engravers Limited v Allfrey HC Christchurch CIV 2010-409-402

[2010] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000402

UNDER  Part 19 of the High Court Rules

IN THE MATTER OF     an application to set aside a statutory demand

BETWEEN  MODERN ENGRAVERS LIMITED Applicant

ANDPHILIP JOHN ALLFREY Respondent

Counsel:         E J Tait for Applicant

G P Tyrrell for Respondent

Judgment:      5 July 2010

JUDGMENT OF ASSOCIATE JUDGE DOHERTY As to Costs

[1]      Counsel have filed memoranda in relation to costs.   The applicant sought further time to present material arising from the Disputes Tribunal hearing (referred to in judgment of 9 June 2010).  I can see no need for further time to be given on the discrete issue of costs.

[2]      Costs on a 2B basis would normally be appropriate.  The applicant takes no issue with respondent’s counsel’s calculations of a total of three days at $1600 per day (ie $4800).

[3]      Counsel for the respondent seeks indemnity costs (on a solicitor/client basis) in accordance with r 14.6(4)(e).  He submits that from 4 December 2009 the terms and conditions of the contract upon which the majority of invoices (which founded

the statutory demand) were rendered contained this condition:

All costs involved in such recovery including but not limited to debt collection agency fees, Court fees and legal costs (on a solicitor/client basis) shall be payable by the Client upon demand.

and therefore indemnity costs should be awarded.

[4]      Each invoice, including the only relevant one prior to 4 December 2009, had endorsed on its face: “Late payments may attract any and all collection costs”.

[5]      It is difficult to resist counsel’s submission.  But the applicant tried to on the grounds that one of the invoices relating to the sum at issue pre-dated 4 December

2009.  But the fact one of the invoices pre-dated the condition would have had no negligible on the costs of this litigation.  The litigation costs would be the same even if only one invoice was relied upon.   In those circumstances the contractual arrangement ought to apply across the board.   It would be difficult to   without differentiate between the one and the others for this purpose.

[6]     The respondent has provided evidence of the solicitor/client costs by memorandum, and the bills appear reasonable.

[7]      I  award  costs  to  the  respondent  on  the  contractual  basis  amounting  to

$7980.26, together with disbursements as set by the Registrar.

Associate Judge Doherty