Waikoro Limited v Beach Arena Limited

[2020] NZHC 2250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2019-404-2778

[2020] NZHC 2250

BETWEEN

WAIKORO LIMITED

Plaintiff

AND

BEACH ARENA LIMITED

First Defendant

AND

SAREN LOO

Second Defendant

AND

CON YUEN LU

Third Defendant

AND

WEI YUEN LOO

Fourth Defendant

AND

GEN YUEN LOO

Fifth Defendant

Hearing:	13 July 2020
Appearances:	D Chisholm QC and M Lenihan for Plaintiff AM Glenie and S Russell for Defendants
Judgment:	1 September 2020

COSTS JUDGMENT OF WALKER J

This judgment was delivered by me on 1 September 2020 at 11.00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

WAIKORO LIMITED v BEACH ARENA LIMITED [2020] NZHC 2250 [1 September 2020]

[1]        The parties have been unable to resolve the quantum of costs following my judgment delivered 13 July 2020, with reasons delivered 16 July 2020.1

[2]        I had already awarded 2B costs to the plaintiff in respect of its opposition to the applications for leave to file defences out of time and in respect of the vacated formal proof fixture. I invited the parties to file memoranda in the event that the quantum was not agreed.

Costs against Beach Arena Limited (BAL)

[3]        The contest as to quantum of costs and disbursements between the plaintiff and BAL is a contest between $3,919.65 and $2,186.90.The disputed areas and my conclusion on the parties’ respective positions are:

(a)The hearing time allocation.

The plaintiff seeks a half day of hearing time split between BAL on the one hand and the second to fourth defendants on the other. The hearing adjourned at 11.37 am after I delivered an oral results judgment. It did not reconvene after the morning adjournment. I accept the defendants’ position that the second quarter of a hearing day was not engaged. Rather, the Court took the morning adjournment to deliver its result rather than spill over into the second quarter.

(b)Seeking formal proof against BAL an unnecessary step.

Waikoro sought formal proof by memorandum after BAL had already filed and served a valid application seeking an extension of time to file its statement of defence. Mr Glenie submits that these circumstances justify denying the plaintiff recovery against BAL for its notice of opposition as a means of reflecting a wasted costs step by BAL which was forced to respond. I reject this argument. The plaintiff was entitled

1      Waikoro Limited v Beach Arena Limited 2020 [NZHC] 1673 and Waikoro Limited v Beach Arena Limited 2020 [NZHC] 1712.

to take the efficient step of seeking a formal proof hearing bearing in mind the anticipated position of the other defendants.

[4]        I therefore make an order for costs and disbursements against the first defendant for $3,620.90 by adjusting for the hearing time allocation.

Second to fourth defendants

[5]        The contest as to quantum of costs and disbursements between the plaintiff and second to fourth defendants is a contest between $6,787.65 and $5,437.25. The disputed areas and my conclusion on the parties’ respective positions are:

(a)The hearing time allocation.

I refer to [3](a) above;

(b)Recovery for two memoranda. Is it double-counting?

The guarantors submit it is double counting to recover costs for the preparation of two memoranda when the matters in the first memorandum dated 1 April 2020 and the second dated 12 May 2020 ought to have been consolidated. I reject this argument. The plaintiff was entitled to seek formal proof against the first defendant at the time of the first memorandum but was not yet entitled to do so against the other defendants. That explains why two memoranda were filed.

[6]        I therefore make an order for costs and disbursements against the second to fourth defendants for $6,488.90 after adjustment for the hearing time allocation.

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

Walker J