Teak Construction Group Limited v Cake Commercial Services Limited

[2024] NZHC 1738

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2800

[2024] NZHC 1738

BETWEEN

TEAK CONSTRUCTION GROUP LIMITED

Plaintiff

AND

CAKE COMMERCIAL SERVICES LIMITED

Defendant

Hearing:	(On the papers)
Appearances:	M Russell for Plaintiff/Respondent J I Taylor for Defendant/Applicant
Judgment:	27 June 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(costs)

This judgment was delivered by me on 27 June 2024 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

………………………………….

TEAK CONSTRUCTION GROUP LIMITED v CAKE COMMERCIAL SERVICES LIMITED [2024] NZHC 1738 [27 June 2024]

[1]    On 13 May 2024, I released a decision granting in part Cake Commercial Services Limited’s (Cake) application for discovery against Teak Construction Group Limited (Teak), in Teak’s application to set aside a statutory demand issued by Cake.1     As to costs, I concluded that Cake should have costs  on  a 2B basis  with    a reduction of 25 per cent to reflect its partial success and the initially overly broad cast of the application.

[2]    However, even though Teak recognises the principle that the failing party should meet costs and that success on limited terms is still success, it has submitted that costs should nonetheless lie where they fall.

[3]    I am satisfied it is not appropriate that costs lie where they fall. The tenor of my judgment of 13 May 2024 is that Teak’s position in declining to make material available was unreasonable particularly given the coyness of its position in respect of the status of the head contract.

[4]I confirm that Cake is entitled to costs on a 2B basis less a 25 per cent discount.

[5]    I am also satisfied this is one of those cases where Cake should have costs in respect of the costs application given there was no real basis to reject scale costs less 25 per cent. Teak’s counsel recognised the guiding principles yet submitted they should not apply. Ultimately, Cake had some success which, save in exceptional circumstances, dictates the costs outcome.

[6]    Accordingly, there is an award of costs and disbursements in favour of Cake, including costs in respect of the fixing of costs in the sum of $7,946.75.

[7]    Mr Taylor, counsel for Cake, advises that a copy of the settlement agreement provided has been redacted. No basis for the redactions has been provided.

1      Teak Construction Group Ltd v Cake Commercial Services Ltd [2024] NZHC 1181.

[8]    Teak is directed to provide to Cake detailed reasons for the redactions within five working days of the date of this Judgment (that is by Friday 5 July 2024). If the redactions cannot be agreed then Teak is to file an unredacted copy of the settlement agreement with submissions as to why the redactions should be maintained. That memorandum will not be searchable by Cake. I will then rule on the appropriateness of the redactions.

Associate Judge Lester

Solicitors:

Kennedys Solicitors, Auckland (Plaintiff) Wynn Williams, Christchurch (Respondent)