Onepath (NZ) Limited v Bacs Investments and Insurance Limited HC Auckland CIV-2010-404-6546

[2011] NZHC 1674

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6546

BETWEEN  ONEPATH (NZ) LIMITED Plaintiff

ANDBACS INVESTMENTS AND INSURANCE LIMITED

First Defendant

ANDBOB WHY KONG MOO Second Defendant

ANDANNE KHEUK HAH HO Third Defendant

Hearing:         On the papers

Appearances: ACC Hooker for Plaintiff

A V Ram for First and Second Defendants

Judgment:      22 November 2011

COSTS JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Turner Hopkins (A Hooker), Takapuna. Email: [email protected]

Amicus Lawyers (A V Ram), Newton, Auckland. Email: [email protected]

ONEPATH (NZ) LIMITED V BACS INVESTMENTS AND INSURANCE LIMITED HC AK CIV-2010-404-

6546 22 November 2011

[1]      The  plaintiff  has  applied  for  an  order  fixing  quantum  of  costs,  after successfully obtaining summary judgment against the first and second defendant.

[2]      At the time of giving summary judgment, I reserved leave to the plaintiff to seek an order if the parties were unable to agree on indemnity costs payable under the business agreement between the parties:[1]

[69]      Under  clause  10  of  the  business  agreement,  the  defendants  are required to indemnify the plaintiff against all damages, liabilities and expenses which the plaintiff in [sic] incurs as a direct or indirect result of any breach of the defendants’ obligations under the agreement.  The plaintiff is not seeking interest.  However, under that clause, the plaintiff is entitled to claim costs reasonably incurred on a solicitor/client basis.   Its counsel did not address me on the quantum.  I reserve leave for the plaintiff to seek an order if the parties are unable to agree.  Any memorandum seeking costs it [sic] to be filed and served within 20 working days, with any memorandum in reply to be filed within a further five working days.

[1] One Path (NZ) Ltd v Bacs Investments and Insurance Limited HC Auckland CIV-2010-404-6546,

23 August 2011 at [69].

[3]      The plaintiff seeks an award of $18,286.67.  Although that amount could be considered high having regard to the amount at stake (judgment was entered for just over $300,000) and the nature of the proceeding, I accept that the costs have been increased substantially by the manner in which the opposition was presented.  The defendants were given leave to amend their opposition after reply evidence had been filed that effectively negated the grounds of opposition at that point.  The amended notice of opposition introduced a raft of further grounds, and the supporting affidavit called for the plaintiff to file further substantial affidavits in reply.   In effect, the plaintiff had to address two cases in the one proceeding.

[4]      Leave was reserved to the plaintiff to seek an order from the Court fixing quantum if agreement could not be reached.  Counsel for the defendants has filed a memorandum advising that a copy of the judgment was forwarded to the defendants, together with a draft of the memorandum of counsel for the plaintiff (presumably setting out the costs being sought), but the defendants have not responded to the claim other than to withdraw their instructions to counsel (who is also solicitor for

them).

[5]      I am satisfied that the defendants have had proper opportunity to respond to the quantum of costs being sought.  I accept that the costs have been significantly increased by the shifting grounds of opposition.  I also take into account counsel’s advice that the plaintiff has paid these costs, indicating that it accepts they were reasonable in the circumstances of the case.

[6]      I award costs to the plaintiff against the first and second defendants in the total sum of $18,286.67, as set out in paragraph 3 of the memorandum of counsel for

the plaintiff dated 13 September 2011.

Associate Judge Abbott