Tumatatoro Limited v HJS AG Limited

[2019] NZHC 1537

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-470-140

[2019] NZHC 1537

UNDER

Articles 12(2) and 13(3) of Schedule 1 to the

Arbitration Act 1996

IN THE MATTER

of a challenge to appointment of an arbitrator

BETWEEN

TUMATATORO LIMITED

Applicant

AND

HJS AG LIMITED

Respondent

BEN VANDERKOLK

Arbitrator

Hearing:

On the papers

Counsel:

D P Reeves for Applicant

H L Thompson for Respondent

Judgment:

2 July 2019

COSTS JUDGMENT OF DUFFY J

This judgment is delivered by me on 2 July 2019 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Marsden Woods Inskip Smith, Whangarei McMahon Butterworth Thompson, Auckland

TUMATATORO LTD v HJS AG LTD [2019] NZHC 1537 [2 July 2019]

[1]    The respondent, who was successful in this proceeding, now seeks costs on a 2B basis and disbursements. The unsuccessful applicant has recently changed counsel. New counsel, Mr Utting, has filed memoranda requesting extensions of time in order to enable him to see if a negotiated position on costs could be reached. Seemingly, that has been unsuccessful.

[2]    On 26 June 2019 he sought time until 28 June 2019 to discuss the potential resolution of the costs issue with the respondent’s counsel. The respondent has now been in contact with the Court to advise that no agreement in relation to costs has been reached and accordingly the respondent seeks delivery of a costs judgment.

[3]    In principal, costs generally follow the event. Further, awards of costs at category 2B level do not require reasons; such awards being the implicit application of the general principle.1

[4]    The final memorandum from the applicant records that it accepts the position as set out in the respondent’s costs memorandum in relation to an award of costs on a category 2B basis to the respondent. No issue is taken with the quantification of those costs.

[5]    Accordingly, I am satisfied that an award of costs as sought by the respondent, is appropriate. Those costs on a 2B basis come to $11,930.50. With the addition of disbursements, the overall total is $12,132.00. I am satisfied the disbursements sought are reasonable and accordingly, I award the respondent costs and disbursements as sought.

Result

[6]    The respondent is awarded costs (on category 2B basis) and disbursements in the sum of $12,132.00.

Duffy J

1      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [16].