Powernet Limited v Arthur

[2022] NZHC 1221

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-11

[2022] NZHC 1221

BETWEEN

POWERNET LIMITED

Plaintiff

AND

JOSHUA GRANT ARTHUR

First Defendant

APPLIED INTELLIGENCE LIMITED

Second Defendant

CASSANDRA LEE ZOHRAB-ARTHUR

Third Defendant

Hearing:

(Determined on the Papers)

Counsel:

A D G Hitchcock for Plaintiff

S N McKenzie for First and Second Defendants

Judgment:

27 May 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(On admission of Claim)

POWERNET LIMITED v ARTHUR [2022] NZHC 1221 [27 May 2022]

[1]    By a second amended statement of claim dated 21 April 2022, the plaintiff sought judgment against the first defendant in the sum of $428,268.87 plus interest and costs, and judgment against the second defendant in the sum of $421,668.97, plus interest and costs. There are further causes of action against the third defendant.

[2]    On 28 April 2022, the first and second defendants filed an admission pursuant to r 15.16 of the High Court Rules 2016 (the Rules). Rule 15.16(3) provides that following the filing of an admission a party whose claim is admitted may seal judgment on the cause of action admitted without prejudice to that party’s right to proceed on any other cause of action.

[3]    It is a requirement of r 15.16(4) that an admission in a claim where a sum of money is claimed, must state the exact amount admitted. The admission filed here does not do so. Rather it admits all matters pleaded by the plaintiff in its statement of claim dated 7 March 2022, that being the original statement of claim where the amount claimed is $440,226.41. That amount is sought against the first and second defendants.

[4]    The admission records “Consent to judgment being entered in respect of all matters pleaded by the plaintiff in the statement of claim dated 7 March 2022 including interests and costs on a 2B basis”. The admission does not make reference to disbursements.

[5]    While the amended statement of claim in fact pleads a lesser amount than the original statement of claim, the admission is for the greater amount.

[6]    Counsel for the first and second defendants has confirmed the admission is in respect of the amount claimed in the original statement of claim.

[7]    Accordingly, and notwithstanding the pleading in the amended statement of claim, judgment is entered against the first and second defendants in the sum of

$440,226.41 together with interest in the sum of $4,773.45, which is calculated from the date of each invoice to 23 May 2022, as per the memorandum as to the sealing of judgment dated 23 May 2022.

[8]    Judgment is entered in favour of the plaintiff against the first and second defendants for liability only in relation to costs. While the plaintiff has tabled a 2B costs calculation, counsel for the first and second defendants notes the statement of claim did not plead (as is usual) a specific amount for costs.

[9]    The real issue raised by Ms McKenzie, counsel for the first and second defendants, is the issue of disbursements.

[10]   The plaintiff has sought judgment for disbursements in the usual way. At first glance, most of the disbursements appear unremarkable, however, a charge of over

$127,000 for an accountant’s invoice stands out. Ms McKenzie wishes to sight that invoice and reserves her position in relation to that issue.

[11]   Accordingly, other than entering judgment for liability in respect of costs, the only judgment entered today is in respect of the $440,226.41 together with interest in the sum of $4,773.45.

[12]   As to the quantum of 2B costs, as a matter of first impression, the items claimed on a 2B basis would appear to be in order and accordingly, unless the first and second defendants, within 10 working days of the date of this Judgment, file a memorandum setting out their objection to the costs calculation, the quantum of the costs award in favour of the plaintiff shall be $34,177.00.

[13]   The issue of disbursements is  reserved.  If  such  cannot  be agreed  within  15 working days, counsel for the plaintiff is to file a memorandum justifying any disputed disbursements and then the first and second defendants are to respond within 10 working days thereafter.

[14]   By way of memorandum dated 20 May 2022, counsel for the plaintiff referred to a freezing order made by Osborne J on 5 May 2022. The freezing order was sought in relation to assets identified in a schedule. Plaintiff’s counsel says the schedule of assets sought to be frozen by the order did not contain all the relevant assets set out in the memorandum and an updating affidavit filed in support of the application. The

plaintiff seeks that the freezing order be extended to cover all of the assets referred to in the application.

[15]   I have referred that request to Osborne J, given the making of freezing orders is outside the jurisdiction of an Associate Judge.

Associate Judge Lester

Solicitors:
AWS Legal, Invercargill (for Plaintiff)

PR Law, Invercargill (for First and Second Defendants)