RJ Viall Builders Limited v Partridge

[2012] NZHC 1605

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1482 [2012] NZHC 1605

BETWEEN  RJ VIALL BUILDERS LIMITED Plaintiff

ANDLYNDA DIANE PARTRIDGE Defendant

(On the papers)

Counsel:         GD Stringer for plaintiff

KF Gould for defendant

Judgment:      6 July 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors:           Inder Lynch, PO Box 72 045, Papakura

Alastair C Wright, PO Box 99 172, Auckland 1149

RJ VIALL BUILDERS LIMITED V PARTRIDGE HC AK CIV-2012-404-1482 [6 July 2012]

[1]      On 24 May 2012 I entered judgment against the defendant for $29,713.13.  I reserved the question of interest and costs.  I ordered that “if counsel cannot agree memoranda in support, opposition and reply shall be filed and served at seven day intervals”.

[2]      Counsel for the plaintiff filed a memorandum setting out the basis for an order for interest and costs on 6 June 2012.  There was no response from counsel for the defendant.  On 15 June 2012 I issued a minute as follows:

I am advised by Mr Stringer that his memorandum setting out the terms of judgment for costs on this proceeding was served on Mr Gould on 28 May

2012.   Unless Mr Gould files a memorandum opposing the application for

costs by 22 June 2012, I will deal with the matter on an unopposed basis and

based on Mr Stringer’s memorandum.

[3]      The Deputy-Registrar who has responsibility for this file forwarded an email to counsel for the defendant on 21 June 2012 as follows:

Please be reminded that per minute of Faire Aj (attached herewith), you are required  to  file  a  memorandum  opposing  the  application  for  costs  by

22 June  2012,  otherwise  His  Honour  will  deal  with  the  matter  on  an

unopposed basis.

Your compliance is appreciated.

[4]      A reply was received from counsel for the defendant’s office as follows:

Receipt acknowledged, thank you Mel.

There has been no memorandum filed on behalf of the defendant.

[5]      The  plaintiff  and  defendant  are  parties  to  a  construction  contract.    On

13 December 2011 the plaintiff issued a payment claim for $29,713.13.  It is pleaded that the defendant did not serve a valid payment scheduled within the meaning of s 21 of the Construction Contracts Act 2002.   On that basis, in accordance with s 23(2) of the Construction Contracts Act 2002 the plaintiff is entitled to recover from the defendant, as a debt due, the amount of the claim, $29,713.13, together with the actual and reasonable costs of recovery awarded against the defendant, plus interest in accordance with the Judicature Act 1908.

[6]      Counsel  for  the  plaintiff  has  submitted  the  tax  invoices  for  legal  costs incurred,  plus  disbursements.    I am  satisfied  that  they represent  the  actual  and reasonable costs of recovery of the amount for which judgment was entered. Counsel’s memorandum has also calculated the interest due to the date on which judgment was entered in accordance with the rate prescribed pursuant to the Judicature Act 1908.  His calculation is correct.

[7]      Accordingly, I enter judgment for costs and interest as follows:

Interest  $496.57
Costs  $8,709.12

[8]      I record that counsel’s calculation has excluded any GST content in respect of

the order that I have made in this case.  In case that should cause a problem I reserve that issue.

JA Faire

Associate Judge