What Green Solutions NZ Limited v Brave New World (NZ) Limited HC Auckland CIV 2010-404-2276

[2010] NZHC 1954

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-2276

BETWEEN  WHAT GREEN SOLUTIONS NZ LIMITED

Plaintiff

ANDBRAVE NEW WORLD (NZ) LIMITED Defendant

Hearing:         8 October 2010

Appearances: No appearance for plaintiff

Ms Nicolson for defendant

Judgment:      8 October 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

Kensington Swan, Auckland –  Elizabet[email protected]

Lowndes Jordan, Auckland – [email protected]

WHAT GREEN SOLUTIONS NZ LIMITED V BRAVE NEW WORLD (NZ) LIMITED HC AK CIV-2010-

404-2276  8 October 2010

[1]      In  this  case  an  injunction  was  ordered  on  16  April  2010  requiring  the defendant, who provides website services to upload to the plaintiff’s website, work that it had performed under a commission from the plaintiff.   It carried out its obligations but was not paid. As a result it now finds itself out of pocket.   Ms Nicolson told me that the defendant has been hard done by and I agree.  Nonetheless it had to comply with the order or appeal and it did not take the later step.   The injunction orders were eventually discharged by Simon France J following a hearing on 29 April 2010.  The Judge directed at paragraph 11 of his minute that the plaintiff was to pay to the defendant full:

... indemnity costs in relation to all legal expenses that have been incurred in relation to compliance with the injunction, and efforts to have it rescinded, from the time of the injunction up to and including today’s hearing.

[2]      A Mr Forsyth who is a director of the plaintiff company gave an undertaking as to damages dated 16 April 2010.  The undertaking followed the usual form and by giving it he agreed:

[2]Comply with any order for payment of damages to compensate the defendant for any damage sustained through the interim injunction being granted in these proceedings.

[3]      The defendant now seeks an order for increased costs and for an order that they be recoverable from Mr Forsyth pursuant to his undertaking as to damages.

[4]      Part of the costs issue has already been resolved by the minute that Simon France J issued on 30 April 2010.  I have already set out its terms and there is no need to repeat them.

[5]      The initial costs, if I may call them that, though were dealt with by Andrews J

in her minute on the basis that:

[3]       Costs will be reserved.

[6]      This matter has now reached the end of its life and is unlikely to come before the Court again.  It is time for any remaining costs issues to be resolved.  I direct that the costs are to be payable to the defendant on an indemnity basis for all steps in the proceedings not covered by the order that Simon France J made.  The reason why I

direct that indemnity costs should be paid is that the plaintiff, having obtained the injunction,  failed  to  comply  with  conditions  attached  to  injunctive  relief  and secondly because the proceedings themselves were struck out as a result of non- compliance by the plaintiff with interlocutory orders made in the proceeding.

[7]      The more vexed question though is whether the costs can be recovered from Mr Forsyth.   I regret that it is my view that they cannot.   It would not be fair or reasonable to read the undertaking as to damages as extending beyond its plain scope.  The undertakings as to damages is the usual one required from an applicant for injunctive relief or a party associated with the applying party.  It refers only to damages.  There is a well recognised distinction between orders granting damages and those directing the payment of costs.  For that reason I do not consider that the order sought ought to be made against Mr Forsyth in the terms that the defendant

seeks.

J.P. Doogue

Associate Judge