Pure Dew Water Company Limited v PanTranz Limited

[2023] NZHC 419

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-000784

[2023] NZHC 419

IN THE MATTER OF

a claim for passing off and breach of the Fair Trading Act 1986

BETWEEN

PURE DEW WATER COMPANY LIMITED

Plaintiff

AND

PANTRANZ LIMITED

First Defendant

ORAWAI LIMITED
Second Defendant

KYLE WILLIAM PANIORA and SELINA ALICIA PANIORA

Third Defendants

Hearing:	On the papers
Counsel:	P J Napier for the Plaintiff A C Elia for the Defendants
Judgment:	7 March 2023

JUDGMENT OF VAN BOHEMEN J

[on costs]

This judgment was delivered by me on 7 March 2023 at 2:00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors/Counsel:

Keegan Alexander, Auckland Brookfields Lawyers, Auckland

PURE DEW WATER COMPANY LTD v PANTRANZ LTD [2023] NZHC 419 [7 March 2023]

[1]                 This proceeding concerns a dispute over the distribution of bottled water in Auckland. Although the proceeding commenced only in May 2022 and has yet to go to a substantive hearing, this is the fourth judgment I have issued in this proceeding.1

[2]                 In each of the previous three judgments, I found principally in favour of the plaintiffs, Pure Dew Water Co Ltd (Pure Dew). Pure Dew alleges that PanTranz Ltd, a company with which Pure Dew had an agreement for the distribution of Pure Dew water, and Orawai Ltd, a company now selling its own water to customers formerly supplied with Pure Dew water by PanTranz, have engaged in passing off, breached the Fair Trading Act 1986 and breached PanTranz’s distribution agreement with Pure Dew. Kyle Paniora is one of the principals of PanTranz and Orawai.

[3]In the First Judgment, I made two orders:2

(a)the Customer List Order, under which PanTranz was to provide Pure Dew a list of all customers to which it supplied any water products in its capacity as a Pure Dew distributor in the three months prior to     21 April 2022; and

(b)The Bottle Order, under which the defendants were to deliver up to Pure Dew all Pure Dew bottles in their possession obtained by PanTranz in its capacity as a Pure Dew distributor.

[4]                 In the third judgment, I declined to award Pure Dew indemnity costs of enforcing the Customer List Order and the Bottle Order, including the costs incurred in applying to vary the Customer List Order. I stated my reasons as follows:

[64] I do not consider that I have sufficient basis to conclude Mr Paniora  and the other defendants have behaved “vindictively and unreasonably throughout” or have been driven by a personal desire to hurt or make things as difficult as possible for Pure Dew. Nor am I satisfied that Mr Paniora has engaged in a conscious and consistent attempt to frustrate the execution of the Bottle Order.

1      The previous judgments are: Pure Dew Water Co Ltd v Pantranz Ltd [2022] NZHC 2027 [First Judgment], Pure Dew Water Co Ltd v Pantranz Ltd [2022] NZHC 2597 [Second Judgment] and Pure Dew Water Co Ltd v Pantranz Ltd [2022] NZHC 3572 [Third Judgment].

2 First Judgment, above n 1, at [95].

[5]                 However, I held that Pure Dew was entitled to costs on a 2B basis with an uplift of 75 per cent.3

[6]                 Because Pure Dew had not provided an analysis of scale costs, I directed counsel to agree on scale costs and to apply a 75 per cent uplift to that figure. I observed that that process should not require further intervention from the Court.4

[7]                 Despite these directions, counsel for the parties have not been able to reach agreement.

[8]Counsel for Pure Dew have provided their calculation of costs. It comprises:

(a)total costs of $17,327.50, which, with a 75 per cent uplift, results in costs of $30,323.13; and

(b)disbursements of $1,652.21.

[9]                 Counsel for the defendants challenge Pure Dew’s calculation of costs in three respects:

(a)They say a deduction of 50 per cent should be made to Pure Dew’s costs of preparing an application to vary the Customer List Order which, in the event, I held was not necessary. They say there was significant overlap in the work done on this application and the contempt of court application

(b)They dispute the costs incurred by Pure Dew in commissioning an investigation to verify the defendants’ claim to have bought bottles from Spring Water Solutions, as discussed in the Third Judgment;

(c)They take issue with Pure Dew’s claim for the costs of second counsel.

3 Third Judgment, above n 1, at [67].

4      At [68]

[10]             I do not accept the defendants’ first point. I agree with counsel for Pure Dew that the application was separate and was fully argued. It was prompted by the email the defendants’ sent to their customers on 22 August 2022 and the defendants initially uncooperative behaviour in implementing both the Customer List Order and the Bottle Order, as discussed in the Second and Third Judgments. For these reasons, I am satisfied that Pure Dew’s costs of preparing that application should be included in the calculation of costs.

[11]             Given the defendants’ previous behaviour, I accept it was prudent and appropriate to verify the defendants’ claim to have purchased bottles from Spring Water Solutions and that it was appropriate to use a private investigator for that purpose.

[12]             I agree with the defendants that the claim for the costs of second counsel is not appropriate.

Order

[13]I direct the defendants to pay Pure Dew’s costs as follows:

(a)2B costs as calculated by Pure Dew, less the costs of second counsel:

$16,730.00, with 75 per cent uplift:  $29,277.50

(b)Disbursements:  $1,652.21.

G J van Bohemen J