HMI TECHNOLOGIES LIMITED V SIGNOPSYS ELECTRONIC SIGNS LIMITED HC AK CIV-2009-404-1520 [2009] NZHC 1126 (26 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                             
 CIV-2009-404-1520

                UNDER                             The District Courts Act, the District Courts
             
                                    Rules and the High Court Rules


                BETWEEN                           HMI TECHNOLOGIES
LIMITED
                                                  Appellant

                AND                               SIGNOPSYS
ELECTRONIC SIGNS
                                                  LIMITED
                                                  Respondent


Hearing:        Matter determined on the papers

Judgment:       26 August 2009 at 4:30 pm


                              JUDGMENT
OF ASHER J
                                   [COSTS]



             This judgment was delivered by me on 26 August 2009 at 4:30
pm
                      pursuant to Rule 11.5 of the High Court Rules

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

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




Solicitors:
Fortune Manning, PO Box 4139. Shortland Street, Auckland 1140
DT Thwaite, PO Box 58-895, Greenmount, Auckland 2141

HMI TECHNOLOGIES LIMITED V SIGNOPSYS ELECTRONIC SIGNS LIMITED HC AK CIV-2009-404-
1520 26 August 2009

[1]    It is necessary to determine costs in this matter. The respondent seeks costs
on a 2B basis for half-a-day,
being $3,360. The appellant submits that it should get
costs or, at the very least, there should be no costs order.


[2]    The
appeal related to discovery orders covering a wide range of matters.
During the course of the hearing all issues were resolved, save
for the issue of
whether confidential documents should be produced to either Mr Pidgeon or
Ms Bormans of the firm of Fortune Manning
Law Partnership, on the basis that their
independence was impugned.          I determined that their independence was not
impugned
and that they should be able to inspect the documents. I also made a
number of further changes to the District Court orders which,
to an extent, reflected
compromises between the parties.


[3]    The appellant lost on what was ultimately the only substantive
issue that was
argued before me, and therefore a costs order is appropriate.          However, issues
developed during the course
of the hearing, and a good deal of hearing time and
preparation time was devoted to matters that were ultimately resolved. I do not
consider it appropriate to make an order for full costs for that reason. I also note that
Mr Thwaite appears to have sent a proposal
for settlement by way of a joint
memorandum, which could have resolved some of the issues that arose if there had
been a substantive
response. There appears to have been no substantive response.


[4]    However, I reject other arguments raised by Mr Thwaite for
the appellant. In
particular:


       a)      It is not correct to say that the appellant won. I consider the nature of
       
       the changes to the orders as being by way of compromise, involving
               the sort of give and take that often arises
in discovery.         On the
               substantive issue that was left, the appellant lost.


       b)      I do not consider
there was any disqualifying conduct on the part of
               the respondent, although an order for costs will reflect that some

               responsibility for the lack of co-operation must be placed at the
               respondent's door.


       c)
     I do not regard a letter attempting to settle the appeal after it had been
               heard as relevant to costs, as by
then the costs had already been
               incurred.


       d)      The appellant asserts there are outstanding obligations
owed by the
               respondent as a consequence of District Court orders.             I do not
               consider this to be an issue relevant
to the order for costs in this
               hearing.


[5]    I consider that the appropriate order for costs is an order of half
the costs that
would otherwise be payable in accordance with scale. Accordingly, I order costs
amounting to $1,680, together with
reasonable disbursements in favour of the
respondent, to be paid by the appellant.




                                         
                   ................................
                                                                            
     Asher J