Wells v Verisure Investigations Limited

[2014] NZHC 121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003696 [2014] NZHC 121

BETWEEN

NEIL EDWARD WELLS

Plaintiff

AND

VERISURE INVESTIGATIONS LIMITED

Defendant

Hearing:

19 December 2013

Appearances:

D J Neutze for the Plaintiff

G Haden (shareholder of Defendant) and by leave for the company

Judgment:

11 February 2014

RESERVED COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 11 February 2014 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:           Brookfields, Auckland

Copy to:            Ms G Haden, Auckland

WELLS v VERISURE INVESTIGATIONS LIMITED [2014] NZHC 121 [11 February 2014]

[1]      This  proceeding  arises  out  of  the  defendant’s  failure  to  comply  with  a statutory demand.  On 19 December 2013 the Court was advised that the proceeding was to be withdrawn as the amount demanded had been paid, leaving only the issue of costs for determination.  I reserved my decision on costs, which I now deal with.

[2]      Counsel for the plaintiff seeks an order for costs on a 2B basis against the defendant  for  steps  taken  in  the  litigation  up  to  and  including  the  hearing  on

26 September 2013 plus an allowance for sealing the order for liquidation.  Counsel points out that the plaintiff had a prima facie entitlement to an order for liquidation which was averted only by payment at the eleventh hour.  As a result the plaintiff claims to be the successful party in the proceeding and that he should receive an award of costs against the defendant.

[3]      The plaintiff also seeks costs against Ms Haden, the director of the defendant, for appearances on 25 October, 11 and 19 December 2013.  Counsel submits these attendances were necessitated by Ms Haden’s personal opposition to the application. An increase of 50 per cent is sought on any costs ordered against Ms Haden.

[4]      Ms Haden opposes any award of costs against the defendant or herself personally.

[5]      I accept that the plaintiff has an entitlement to costs.  Plainly he was justified in bringing the application when the defendant withdrew its application for an order to set aside the plaintiff’s statutory demand and failed to make payment in full within the time ordered by the Court on 21 June 2013.  However, I do not accept that the plaintiff is entitled to the full amount he claims.

[6]      First, there is no  case for an  allowance to seal an order for liquidation. No such order has been made.  I disallow that part of the claim.

[7]      Secondly, I am not satisfied this is a case for increased costs.   There is nothing about this case which would indicate the contrary.

[8]      Thirdly, I think there is some substance to Ms Haden’s argument that she endeavoured to obtain an explanation from the plaintiff’s solicitors as to how the sum claimed was made up in view of the payments she had made, but was rebuffed. She says she made clear the company would meet its obligations but required clarification.  I accept that there may be something in her assertions.  It does appear that she has had some difficulty in understanding the plaintiff’s approach in the way it applied payments she made and that a more conciliatory response to her enquiries might have brought the proceeding to an end sooner.

[9]      Additionally, I think there is an element of duplication in the costs claim. A costs order was made on 21 June 2013 on withdrawal of the application to set aside the demand.   I have not been given details but I anticipate that the order covered the issuing of the demand.  I therefore make no allowance for that step.

[10]     Counsel  for  Ms  Haden  seeks  to  counter  some  of  these  points  with  the argument that the plaintiff was put to a good deal of trouble in responding to Ms Haden’s arguments.  It is fairly plain however that her arguments in opposition did not call for detailed responses or warrant significant expenditure in preparing submissions in opposition.  They just called for elaboration or explanation.

[11]     The net result is that I think the plaintiff will be fairly compensated by my allowing scale costs on a 2B basis on the preparation and filing of the statement of claim with an appropriate award for each appearance.   I consider 1A costs are adequate compensation for the appearances on 26 September and 25 October which dealt largely with timetabling; that 2B costs are reasonable for the appearance on

11 December 2013; and that 1A costs are appropriate for the brief appearance on

19 December 2013.

[12]     It seems to me that this approach will afford reasonable compensation to the plaintiff given the complexity and time involved in the various steps taken.

[13]     I therefore make awards as follows:

[a]      Against the defendant, $1458 based on: [i]       0.6 of a day x $1990 =     $1194 [ii]      0.2 of a day x $1320 =      $264

[b]       Against Ms Haden, $1324 based on:

[i]        0.4 of a day x $1990 =      $796 [ii]     0.2 of a day x $1320 x 2 = $528

[14]     Additionally I allow disbursements, as fixed by the Registrar, against the

defendant.

Associate Judge Sargisson