Smith Elements & Controls Limited v EPI Group Limited

[2018] NZHC 1656

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-364

[2018] NZHC 1656

BETWEEN

SMITH ELEMENTS & CONTROLS LIMITED

Plaintiff

AND

EPI GROUP LIMITED

First Defendant

INTROL PRODUCTS LIMITED

Second Defendant

Hearing:	On the papers
Counsel:	M J Fisher and K J Ng for Plaintiff S J Rawcliffe for Defendants
Judgment:	6 July 2018

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 6 July 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:           Clancy Fisher Oxner & Bryant, Hamilton

Harkness Henry, Hamilton

SMITH ELEMENTS & CONTROLS LIMITED v EPI GROUP LIMITED [2018] NZHC 1656 [6 July 2018]

[1]In my judgment of 12 February 2018, I addressed two applications, namely:

(a)An application to set aside EPI’s protest to jurisdiction; and

(b)To make interim/interim “orders” prior to a hearing of an application for interim relief.

[2]        At the hearing the parties indicated agreement that there is no basis for protest as to jurisdiction, provided the proceedings are limited to an application for an interim measure pursuant to art 9 of the Act. The focus of the judgment became whether there should be “interim/interim orders”. I resolved that there should be.

[3]        I now have an application for costs by the plaintiff. The first defendant opposes the application (and, in fact, seeks costs) on the following bases:

(a)The first defendant filed and served a protest as to jurisdiction in response to the proceedings that were filed against it – the proceedings sought relief rather than just interim relief;

(b)Counsel for the first defendant put the plaintiff on notice that the dispute resolution process agreed to by the parties was governed by cl 9 of the supply agreement and so the substantive proceedings could not be pursued through the High Court;

(c)Therefore, the first defendant’s protest as to jurisdiction in respect of the substantive proceeding must be maintained;

(d)The first defendant challenged the granting of interim orders on the basis that no justification had been provided by the plaintiff to depart from the agreement to arbitrate any disputes. However, for the purpose of advancing matters, the first defendant agreed to limited “interim” orders being put in place to protect the position of both parties until the matter could be arbitrated.

[4]        The second defendant also seeks costs on the basis that it was not even a party to the supply agreement, yet it needed to file a notice of opposition, evidence and submissions in respect of the application opposing the protest to jurisdiction, as well as oppose the interim/interim orders that were being sought by the plaintiff.

[5]        I am satisfied there should be costs to the plaintiff on the application to set aside the protest as to jurisdiction and for the purpose of obtaining an interim order against the first defendant. It basically succeeded in both respects, though I accept the first defendant’s point that it did not set aside the protest to jurisdiction in a substantive sense and so the costs award should be reduced by 25 percent accordingly.

[6]        I make no award in relation to the second defendant. The second defendant unsuccessfully opposed the application but it was really a side-party to the engagement.

[7]        As to quantum, I am satisfied that the quantum claimed appears appropriate. Therefore, there shall be an order in the sum sought, including disbursements by the plaintiff, less 25 percent.