NMHB Limited v Concrete Structures (NZ) Limited

[2018] NZHC 3082

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2018-463-000018

[2018] NZHC 3082

BETWEEN

NMHB LIMITED

Plaintiff

AND

CONCRETE STRUCTURES (NZ) LIMITED

Defendant

On the papers:

3 October 2018

Appearances:

P Dalkie for the Applicant

K Badcock for the Respondent

Judgment:

26 November 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 26 November 2018 at 3.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Dyer Whitechurch, Auckland K Badcock, Rotorua

P Dalkie, Auckland

NMHB LTD v CONCRETE STRUCTURES (NZ) LTD [2018] NZHC 3082 [26 November 2018]

[1]    On 18 September 2018, I declined NMHB Limited’s application to set aside the statutory demand served upon it by Concrete Structures (NZ) Limited. The application to set aside the demand was filed on 5 March 2018 and the hearing took place on a defended basis on 24 May 2018, when I reserved my decision.1

[2]    In the judgment issued on 18 September 2018, I made the following order with respect to costs:

Under s 23 of the CCA, NMHB must pay Concrete Structures its actual and reasonable costs on this application.

[3]    Counsel for the parties do not agree that the costs Concrete Structures is seeking as its claimed actual costs are reasonable. This judgment deals with that remaining issue.

The claim for costs

[4]Concrete Structures claims as its actual and reasonable costs $19,250.

[5]The amount claimed is made up of three separate components, as follows:

(a)$8,845.65 said to be incurred “to” and “in” March 2018 for 25 hours at an hourly rate of $350. The time was spent issuing the statutory demand and preparing documents in opposition to the application to set aside;

(b)$5,250 for actual and reasonable costs up to 30 May 2018. This is for 15 hours spent “to complete, file and serve submissions and affidavits and appear at Rotorua HC hearing”.

1      The judgment of 18 September 2018 contains inadvertent but obvious slips. The title page of the judgment states that the  date  of  hearing  was  24  May  2017,  which  should  of  course  read 24 May 2018. Additionally, the introductory words to paragraph 5 refer to the statutory demand being issued “within the statutory timeframe”. That phrase was misplaced. It is the application  to set aside that was made within the statutory timeframe.

(c)$5,250 for actual and reasonable costs up to 31 August 2018, for a further 15 hours also recorded as spent “to complete, file and serve submissions and affidavits and appear at Rotorua HC hearing.”

[6]I deal with each of the components in turn.

[7]    As to the first, counsel for NMHB submits that in fact the statutory demand had already been issued in February, and therefore the work in March would have been confined to preparing the documents in opposition to the application to set aside. He submits further that a fee based on 25 hours for documents in opposition is excessive.

[8]    I consider, first, that 25 hours may be a generous allowance, but it is not clearly excessive for the activities claimed for; and secondly that NMHB is entitled to recover the costs relating to preparing and serving the statutory demand. I accept its fee for the first component is reasonable.

[9]    As to the second component, counsel for NMHB submits that the second of the sums is unsupported by sufficient detail and ought to be reduced. I do not accept the submission. The 15 hours claimed “to complete, file and serve submissions and affidavits and appear at Rotorua HC hearing” may be on the high side, but it is not so obviously excessive for the work described as to warrant a reduction. I find the claim to be reasonable.

[10]   I turn next to the third component. It is said to be for work carried out up to 31 August 2018, which extends well after the hearing on 28 May 2018. Yet, the actual description of the work is identical to the work claimed for to 31 May 2018, including the appearance at the hearing. That work has already been covered by the second component of the claim. There may be an explanation for this apparent duplication, but as matters stand I can only assume that this third component has been claimed inadvertently. It find it cannot therefore be justified as reasonable.

Result

[11]I allow, for actual and reasonable costs, the amount of $14,095.65.

[12]   The applicant is also entitled to usual disbursements including its filing fee on its documents in opposition (which counsel for NMHB concedes).

[13]I make orders accordingly.

Associate Judge Sargisson