Extreme Communications Limited v OSL Systems Limited HC Wellington CIV 2010-485-627 [2010] NZHC 1397 (26 July 2010)

Last Updated: 19 August 2010

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2010-485-627}

BETWEEN EXTREME COMMUNICATIONS LIMITED

Plaintiff

AND OSL SYSTEMS LIMITED Defendant

Hearing: 26 July 2010

Appearances: J.D. Haig - Counsel for Plaintiff

S. Meikle - Counsel for Defendant

Judgment: 26 July 2010

_{ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL}

Solicitors: Greg Kelly Law Ltd, Solicitors, PO Box 25-243, Wellington 6146

Lawler & Co, Solicitors, PO Box 105 212, Auckland

EXTREME COMMUNICATIONS LIMITED V OSL SYSTEMS LIMITED HC WN CIV-2010-485-627 26

July 2010

[1] Before the Court is an application for summary judgment by the plaintiff.

[2] A formal notice of opposition to this application was filed by the defendant on 26 May 2010 together with supporting affidavits.

[3] Mr Meikle appeared as counsel for the defendant before me today. He indicated to the Court, however, that he does not hold instructions to oppose the present application before the Court with respect to an amount I will refer to shortly which has been described as the “undisputed amount”, nor does he hold instructions to present submissions in opposition with regard to the plaintiff’s claims for interest and costs on this summary judgment application.

[4] Mr Meikle confirmed, however, that he does hold instructions with respect to an application from the plaintiff to transfer the balance of the plaintiff’s claim (once it is reduced to below the $200,000.00 threshold) to the District Court. Those instructions, Mr Meikle confirms, are not to oppose the application for transfer to the District Court.

[5] Turning to the summary judgment application before me, Mr Haig, counsel for the plaintiff, confirmed that summary judgment is sought today for the sum of

$140,138.40. In addition summary judgment is sought with regard to interest on this sum and costs.

[6] Mr Haig referred to this $140,138.40 amount as the “undisputed amount” of the claim before the Court. Broadly speaking and for reasons I will detail later, I accept that this is the position. Summary judgment with respect to this amount will follow.

[7] Mr Haig then went on to put before me arguments regarding a claim for interest on this sum at the prescribed rate of 8.4% p.a. under s. 87 Judicature Act

1908 for the period from 21 November 2008 to 26 July 2010. The commencement date of 21 November 2008 he submitted was 1 day after the due date for payment of invoice amounts of at least this $140,138.40 and that in terms of s. 87 Judicature Act

1908, this is a proper matter upon which interest should be paid by the defendant.

[8] For reasons I will outline later, I agree. An order as to interest on the

$140,138.40 will follow.

[9] Finally, Mr Haig for the plaintiff sought costs with regard to this summary judgment application in part on an indemnity costs basis and in part on a Category

2B basis.

[10] Although, Mr Meikle confirmed he held no specific instructions with regard to the costs question, in response to an invitation from the bench, he did indicate that scale costs would be appropriate here.

[11] The plaintiff is clearly entitled to costs here. But, I intend to reserve my decision on this question to consider further the material before the Court and to make a proper assessment of the amount which should be fairly payable to the plaintiff here.

[12] That said, the plaintiff’s application for summary judgment before me succeeds with respect to that part for which Mr Haig confirms the plaintiff is seeking judgment.

[13] Summary judgment is therefore granted in favour of the plaintiff against the defendant as follows:

(a) For the sum of $140,138.40, being the undisputed part of the amount claimed by the plaintiff in this proceeding.

(b) For the sum of $19,769.88 representing interest at 8.4% p.a. on the

$140,138.40 from 21 November 2008 to today 26 July 2010 being

613 days at $32.25 per day.

[14] As to costs, these are reserved and will be the subject of a decision I will release shortly.

[15] Further, my detailed reasons for the decision outlined above will follow.

[16] Finally, one last matter was before the Court today and needs mention. This was an application by the plaintiff to transfer this proceeding to the District Court in so far as it now relates to a disputed amount claimed by the plaintiff being, as I understand it, the sum of $131,463.55.

[17] As I have outlined above, Mr Meikle for the defendant indicated that he holds specific instructions not to oppose that transfer of the balance of this proceeding to the District Court.

[18] That said, an order is now made transferring the balance of this proceeding to the District Court given first the wishes of the parties and secondly that the amount in question is now within the District Court jurisdiction and is an issue not requiring to remain in this Court.

[19] As I have indicated above my detailed reasons for this decision will follow I

would hope within the next few days.

‘Associate Judge D. I. Gendall’