Wizard BMS Limited v NZ Honey Supply Limited

[2025] NZHC 868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3233

[2025] NZHC 868

BETWEEN

WIZARD BMS LIMITED

Applicant

AND

NZ HONEY SUPPLY LIMITED

Defendant

Hearing:	14 February 2025
Appearances:	Murray Tingey/Tiffany Utama for the Applicant D I Sheppard for the Respondent
Judgment:	11 April 2025

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 11 April 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Fee Langstone (Craig Langstone), Auckland, for the Applicant Cooper Rapley Lawyers, Palmerston North, for the Respondent

Counsel:

M Tingey/T Utama, Auckland, for the Applicant

WIZARD BMS LIMITED v NZ HONEY SUPPLY LIMITED [2025] NZHC 868 [11 April 2025]

Introduction

[1]    This matter was called before the Court at 11:45am on 14 February 2025. Apart from seeking timetabling directions, which were agreed by the parties, there were two issues:

(a)the proper registry in which the proceedings should be filed. Counsel for the respondent sought to transfer the proceedings to the Palmerston North Registry and this was opposed by counsel for the applicant;

(b)whether the affidavit of Ms Brianna Walton, dated 22 January 2025, filed in support of the respondent’s notice of opposition requires re- affirmation or not.

[2]    At the hearing, counsel for the respondent conceded that the proceeding should remain in the Auckland Registry. By memorandum dated 13 February 2025 the applicant sought costs for the appearance on 14 February 2025.

1. Following the hearing, the Court made the following directions:

(a)counsel for the respondent was to submit a memorandum as to costs in respect of the hearing on 14 February 2025 (not to exceed three pages) within 10 working days of 18 February 2025;

(b)counsel for the applicant was to file any memorandum in reply within five working days of receipt of counsel for the respondent’s memorandum;

(c)a decision as to costs was then to be made on the papers;

(d)Ms Walton’s affidavit dated 22 January 2025 shall be corrected under r 1.5 of the High Court Rules 2016 and be treated as affirmed by her

and may be relied upon by the respondent without re-affirming the affidavit.

[4]    Counsel for the respondent filed a memorandum as to costs dated 4 March 2025, and counsel for the applicant filed a memorandum in reply dated 6 March 2025.

Applicant’s position

[5]    The applicant is seeking costs on a 2B basis in respect of the memorandum in preparation for, and appearing at, the call on 14 February 2025. The applicant asserts that the memorandum and appearance at that call were unnecessary as the two matters raised as issues should have been dealt with the by the respondent without need for a court appearance.

[6]    Counsel for the applicant submits the issues which should have been resolved were:

(a)whether the proceeding was filed in the correct Registry. Counsel for the applicant submits as follows:

(i)the applicant exercised its option under r 5.1(2) to issue the proceeding in the Auckland Registry as the place where a material part of the cause of action arose, and was nearest to the place where the applicant resides;

(ii)no application was made by the respondent to transfer the proceedings to the Palmerston North Registry;

(iii)by not filing an application either before, or at the same time as filing its notice of opposition, the respondent waived any irregularity in the registry in reliance on Inder v Commissioner of Crown Lands1 and Morgan v Sovereign Assurance Co Ltd.2

1      Inder v Commissioner of Crown Lands HC Christchurch, CIV-2009-409-1219, 27 November 2009.

2      Morgan v Sovereign Assurance Co Ltd [2013] NZHC 1195, (2012) 21 PRNZ 593 at [11]-[12].

(b)the affidavit of Ms Walton should be re-affirmed, which could have been dealt with without the need for a court appearance.

[7]The costs sought by the applicant are $2,390.00 calculated on a 2B basis.

Respondent’s position

[8]    Counsel for the respondent submits that the applicant’s application for 2B costs for the first call of the proceeding should be dismissed. He submits as follows:

(a)A memorandum was required to be prepared for the Court in any event as timetabling directions were needed. The timetabling directions that were sought in the memoranda were originally set out and proposed by counsel for the respondent and agreed to by counsel for the applicant, and accordingly there was no cost to the applicant arising from that;

(b)the balance of the memorandum dealt with the issues as to the proper registry of the Court and the acceptance of the respondent’s affidavit evidence. As to the issue of the registry, the applicant filed its application in the Auckland Registry on the basis that the statutory demand was served on the applicant company and the applicant’s registered office and principal place of business is in Auckland. However, after service of the statutory demand does not constitute a material part of the cause of action of a set-aside application to render it able to be filed in the registry closest to the applicant, under r 5.1(2), in reliance on Independent Liquor (NZ) Ltd v Hanssen3 and Seaview Road Ltd v Sarysyn Haining Ltd;4

(c)the issue of the application being filed in the wrong registry was raised with counsel for the applicant immediately after the application was served on the respondent. Because the issue turned only  on  paragraph 33 of Mr Harrison’s evidence (for the applicant), it was not

3      Independent Liquor (N Z) Ltd v Hanssen [2012] NZHC 2441

4      Seaview Road Ltd v Sarysyn Haining Ltd HC Christchurch M14/01, 20 December 2001.

considered necessary for a formal notice of interlocutory application supported by an affidavit from the respondent to be prepared, filed, and paid for. Rather, it was considered the issue could be dealt with efficiently by way of an oral application at the first call;

(d)it is not accepted that there was a waiver of the applicant’s irregularity by filing the respondent’s notice of opposition and affidavit in support as the registry issue was raised immediately after the application was filed in Auckland, before the respondent’s documents were filed, and was then an issue to be pursued by oral application for a direction at the first call of the proceedings;

(e)the applicant’ submissions that the irregularity of filing in the wrong Court have been waived are contained in just two paragraphs of its memorandum and do not justify a costs award;

(f)it was only accepted by the respondent that the proceedings could remain in the Auckland registry after the applicant raised for the first time in its memorandum of 13 February 2025 that material parts of the counterclaim were in Auckland. Had that been raised by the applicant at the outset, or at least earlier than on the eve of the call of the proceedings, a transfer would not have been considered and neither counsel’s nor the Court’s time would have taken up with that issue. As soon as it was raised by the applicant, the transfer was responsibly no longer pursued by the respondent.

[9]    Counsel for the respondent submits that overall, the applicant should not be entitled to any costs with respect to the memorandum because a memorandum (whether joint or individual) was going to be prepared for the applicant for the first call of the proceeding regardless of any other issue, and the applicant created the issue over the proper registry of the Court by irregularly filing in the wrong one and so it should not be entitled to costs arising from that (even though the proceedings are to remain in Auckland).

[10]   As to the reaffirming of Ms Walton’s affidavit, counsel for the respondent submits:

(a)The applicant took issue with the affidavit, providing in one place that it was sworn but in another place providing that it was affirmed, and sought an order that the affidavit needs to be reaffirmed to be relied upon by the respondent;

(b)against that, the respondent instead requested the affidavit be accepted despite the minor irregularity to save resources and time of Ms Walton and an oath-taker reaffirming the reprinting of a 157-page affidavit;

(c)ultimately the affidavit was accepted by the Court with the irregularity being corrected, without having to be reaffirmed, and therefore the respondent may be considered the successful party in respect of that issue.

Result

[11]   Having considered the memoranda filed by counsel, I am of the view that costs should lie where they fall. The reasons for this are:

(a)a memorandum would have needed to be prepared for the first call of the matter on 14 February 2025 in any event, notwithstanding the two issues that were raised before the Court;

(b)the applicant should be regarded as successful in respect of the proceedings remaining filed in the Auckland Registry, but it is noted that the grounds on which that was successful, namely the counterclaim forming a material part of the cause of action, were not raised until counsel for the applicant’s memorandum of 13 February 2025, the day before the first call;

(c)the respondent should be regarded as the successful party in respect of the issue relating to the reaffirmation of Ms Walton’s affidavit;

(d)the issue of waiver by the respondent of the applicant’s irregularity in filing in the wrong registry by filing its notice of opposition is a doubtful application, as counsel for the respondent raised the issue of the correct registry by email prior to filing the respondent’s notice of opposition and affidavit in support, arguably defeating any argument of waiver.

Order

[12]   I order that the applicant’s application for costs in respect of the memorandum prepared for the call of the matter on 14 February 2025, and appearance at that call, should be dismissed and costs should lie where they fall.

…………………………….. Associate Judge Taylor