NMHB Limited v Concrete Structures (NZ) Limited
[2019] NZCA 179
•24 May 2019 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA618/2018 [2019] NZCA 179 |
| BETWEEN | NMHB LIMITED |
| AND | CONCRETE STRUCTURES (NZ) LIMITED |
| Counsel: | P F Dalkie for Appellant |
Judgment: | 24 May 2019 at 3.00 pm |
JUDGMENT OF BROWN J
(Costs)
AThe appellant is to pay the respondent $3,823.75 as its actual and reasonable costs on the abandonment of the appeal.
BThe balance of security for costs (plus interest) after payment of costs is to be paid to the respondent in partial satisfaction of the order for costs in the High Court.
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REASONS
On 18 September 2018 the appellant’s application to set aside a statutory demand under s 290 of the Companies Act 1993 was declined.[1] An order was made under s 23 of the Construction Contracts Act 2002 (the Act) that the appellant pay the respondent its actual reasonable costs on the unsuccessful application. As the parties were unable to agree on quantum, on 26 November 2018 the Court fixed actual and reasonable costs in the sum of $14,095.65.[2]
[1]NMHB Ltd v Concrete Structures (NZ) Ltd [2018] NZHC 2436.
[2]NMHB Ltd v Concrete Structures (NZ) Ltd [2018] NZHC 3082.
On 12 October 2018 the appellant filed a notice of appeal against the 18 September 2018 judgment. A hearing date for the appeal was scheduled for 21 May 2019 but on 20 March 2019 the appeal was abandoned. The respondent now seeks costs on the abandonment of the appeal.
In a memorandum dated 23 April 2019 the respondent submitted that it was entitled to actual and reasonable costs of $3,220.00 plus a further sum of $603.75 for preparation, filing and service of the costs memorandum. The amounts were evidenced in an invoice of Mr Badcock annexed to the memorandum.
In addition pursuant to r 48(4) of the Court of Appeal (Civil) Rules 2005 (the Rules) it seeks a direction that any remaining balance of the security for costs after payment of costs on the abandonment be paid to the respondent in partial satisfaction of the costs order of the High Court of 26 November 2018.
In a memorandum dated 13 May 2019 the appellant accepted that an order for costs should be made but disputed the quantum sought. The appellant did not oppose the basis upon which the respondent sought actual and reasonable costs by reference to the Act but submitted that the calculation of costs on the basis of eight hours was inflated, proposing instead an award of $1,650.00 based on an allowance of five hours work.
There is no dispute between the parties that the approach to costs in this case is that determined by this Court in Watts & Hughes Construction Ltd v Complete Siteworks Company Ltd.[3] Consequently the appellant is obliged to pay the respondent’s actual and reasonable costs of the appeal. The issue is whether the costs sought are actual and reasonable.
[3]Watts & Hughes Construction Ltd v Complete Siteworks Company Ltd [2014] NZCA 564, (2014) 22 PRNZ 397.
In addition to communications with the Court and with Mr Dalkie, the costs sought include the activities of reviewing the notice of appeal and researching the law. The notice of appeal was a detailed document which raised a number of issues relating to the Act. I do not consider that in the circumstances the time spent in considering the legal issues raised was unreasonable.
Consequently I approve the respondent’s actual and reasonable costs in the total sum sought of $3,823.75.
An order is made under r 48(4) of the Rules that the balance of the amount of security for costs of $6,600.00 (plus any interest) which remains after payment of costs of $3,823.75 be paid to the respondent.
Solicitors:
Dyer Whitechurch, Auckland for Appellant
Badcocklaw, Rotorua for Respondent
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