Robbies Bar and Bistro Limited v Robbies Bar and Bistro Franchising Limited (in liq)

[2020] NZHC 2438

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000245

[2020] NZHC 2438

BETWEEN

ROBBIES BAR AND BISTRO LIMITED

First Plaintiff

AND

ALAN JOHN ROBERTS and LOLA NEROLI ROBERTS

Second Plaintiffs

AND

ROBBIES BAR & BISTRO FRANCHISING LIMITED (in liq)

Defendant

Appearances:

J Shingleton for Plaintiffs

No appearance for the Defendant

Judgment:

18 September 2020

(Determined on the papers)

JUDGMENT OF OSBORNE J

(costs and recall)

This judgment was delivered by me on 18 September 2020 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

ROBBIES BAR AND BISTRO LIMITED v ROBBIES BAR & BISTRO FRANCHISING LIMITED (in liq) [2020] NZHC 2438 [18 September 2020]

[1]                 By the Court’s judgment of 1 September 2020, the first plaintiff obtained the judgment it sought against the defendant.1 The established debt was $436,998 together with interest.

[2]                 In the judgment, I ordered the defendant to pay to the first plaintiff the costs of the proceeding on a 2B basis together with disbursements to be fixed by the Registrar.2

[3]                 Mr Shingleton has now filed a memorandum setting out his calculation of scale costs together with details of disbursements.

[4]Mr Shingleton has correctly calculated 2B costs at $35,730.50.

[5]Disbursements total an additional $1,770.

[6]                 Mr Shingleton submits that this was an appropriate case in which to award the plaintiff increased costs under r 14.6(3)(b)(vi) High Court Rules. He refers to a Calderbank offer made by the plaintiffs on 13 July 2018 when they offered to settle their claim if the defendant paid $150,000.

[7]                 Having regard to the timing and the amount of the plaintiff’s offered settlement sum, this represents a situation to which the quoted rule applies.

[8]                 The Court was unaware, when making the costs order on the basis of a 2B award, that there had been a written offer made under r 14.10 of the Rules. Appropriately, the plaintiffs should have had the opportunity to bring that information to the Court before the costs order was made in the judgment.

[9]                 In these circumstances, I recall the judgment under r 11.9 High Court Rules for the purpose of receiving Mr Shingleton’s submission in relation to costs and making a costs order on an increased costs basis.

[10]              Mr Shingleton has submitted that an uplift (above a 2B award) of 20 per cent might be appropriate. On my assessment, particularly having regard to the timing of

1      Robbies Bar and Bistro Ltd v Robbies Bar & Bistro Franchising Ltd (in liq) [2020] NZHC 2258.

2      At [26](c).

the settlement offer and the amount proposed, an uplift of 30 per cent is justified and fair. The resulting costs award I round to $46,450. I note that Mr Shingleton records that that is less than the plaintiffs’ total fees.

Orders

[11]I order:

(a)The judgment in Robbies Bar and Bistro Ltd v Robbies Bar & Bistro Franchising Ltd (in liq) [2020] NZHC 2258 (the judgment) is recalled.

(b)The judgment is reissued with the following corrections and amendments:

(i)The figure of $471,343.59 at [26](b) of the judgment is amended to read “$436,998”.

(ii)The order as to costs at [26](c) is deleted and replaced by the following:

“The defendant is to pay to the first plaintiff the costs of this proceeding fixed in the sum of $46,450 together with disbursements fixed in the sum of $1,770.”

Osborne J

Solicitors:
First Law Ltd, Lincoln