Safari BBQ Products Limited v Safari Vervaardiging CC

[2022] NZHC 3149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-691

[2022] NZHC 3149

BETWEEN

SAFARI BBQ PRODUCTS LIMITED

Applicant

AND

SAFARI VERVAARDIGING CC

Respondent

Hearing:

(On the Papers)

Appearances:

S Jeffs for Applicant

J Marcetic for Respondent

Judgment:

29 November 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

SAFARI BBQ PRODUCTS LIMITED v SAFARI VERVAARDIGING CC [2022] NZHC 3149

[29 November 2022]

[1]                 The respondent seeks that costs be fixed in respect of its largely successful defence of the applicant’s application to set aside its statutory demand.

[2]                 The respondent has the benefit of a solicitor-client cost clause in its contract with the applicant.

[3]                 Given the respondent is a South African company, it does not seek GST on the solicitor-client costs claimed.

[4]The amount claimed for solicitor-client costs is $36,459. Disbursements of

$312.13 are sought.

[5]                 The respondent has provided details of those involved in filing the application to set aside demand, their hourly rates and how much time they spent on the project. The invoices issued have been produced to the Court.

[6]The wording of the solicitor-client costs clause is unambiguous.

[7]                 In assessing whether the indemnity costs claimed are reasonable, the Court assesses whether the tasks undertaken were reasonably necessary and were covered by the contract and whether the charge rates were reasonable. However, the reference to “reasonable” in the High Court Rules 2016 (the Rules) relating to costs based on  a contractual right to recover actual costs does not import a discretion in the usual sense. Where a party has contractually bound itself to pay full solicitor-client costs, anything less than a full indemnity for costs properly incurred is inconsistent with the successful parties’ contractual rights.1

[8]                 The applicant has not replied to the application for costs. Applicant’s counsel advises they are no longer instructed.

[9]                 In practical terms, the applicant has had more time than originally envisaged by my Judgment of 21 October 2022 to reply on the issue of costs.2

1      See the discussion at Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR14.6.03(3)(e).

2      Safari BBQ Products Ltd v Safari Vervaardiging CC [2022] NZHC 2741.

[10]            Taking a robust approach to confirmation of costs, as I am entitled to, and in the absence of any objection within the timeframes allowed, indeed, within further time effectively allowed upon the Court calling for submissions from the applicant, there is an order that the applicant is to pay the respondent’s costs and disbursements totalling $36,771.13.

[11]            Mr David Bell, who is presently solicitor on the record for the applicant, has informally sought an order that he cease to be a solicitor on the record. I am not prepared to make that order on the basis of Mr Bell’s brief memorandum. However, the practical point is this proceeding, in which Mr Bell was solicitor on the record is now concluded save that the respondent may wish to seal this order for costs. However, once that is done the proceeding and Mr Bell’s involvement in it will be at an end.

[12]            If Mr Bell wishes to pursue an order that he is no longer solicitor on the record, I am prepared to deal with that on a relatively informal basis but he will need to file  a memorandum confirming he has complied with the requirements of r 5.40 of the Rules.

[13]            I note Mr Bell says that Mr Erasmus, director of the applicant company, intends to manage this proceeding himself. As I have said, there is effectively no life left in this proceeding save for the sealing of this costs order. Of course, Mr Erasmus does not have a right to appear for the applicant in this Court.

Associate Judge Lester

Solicitors:

Bell Associates Lawyers, Auckland (for Applicant) Chapman Tripp, Auckland (for Respondent)

Copy to counsel:
S Jeffs, Barrister, Auckland (for Applicant)