Scalzo Trading Co Pty Limited v Living Healthy Limited [2012] NZHC 46 (3 February 2012)

High Court of New Zealand

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Scalzo Trading Co Pty Limited v Living Healthy Limited [2012] NZHC 46 (3 February 2012)

Last Updated: 10 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-6832 [2012] NZHC 46

BETWEEN SCALZO TRADING CO PTY LIMITED Plaintiff/Counterclaim Defendant

AND LIVING HEALTHY LIMITED Defendant/Counterclaim Plaintiff

Hearing: 3 February 2012

Counsel: BP Molloy for plaintiff

JH Hunter for defendant

Judgment: 3 February 2012 at 10:25 AM

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on costs]

Solicitors: Haigh Lyon, PO Box 119, Auckland 1140

Jones Young Lawyers, PO Box 189, Auckland 1140

SCALZO TRADING CO PTY LIMITED V LIVING HEALTHY LIMITED HC AK CIV 2010-404-6832 3

February 2012

[1] This proceeding was allocated a judicial settlement conference at a case management conference before me on 6 October 2011.

[2] In addition to giving directions for the judicial settlement conference I gave directions for the trial of this proceeding. Those directions allocated four days for trial and set deadlines for the service of briefs of evidence. I mention that because included in this judgment will be orders varying time for the service of the briefs of evidence in view of the development which has occurred.

[3] The directions for the judicial settlement conference required the plaintiff to file and serve a memorandum by 19 December 2011, which in fact occurred, and for the defendant to file and serve a memorandum by 20 January 2012. Ms Hunter now has advised that she has had difficulty getting instructions. The short point, however, is that no memorandum has been filed by the defendant for the purpose of the judicial settlement conference. The defendant’s officers do not appear in person today and do not wish to participate in a settlement conference.

[4] My minute which set up the judicial settlement conference warned the parties that if there was a failure to comply with the directions given for the judicial settlement conference, a defaulting party is at risk of an order for costs being made. There has been such a default in this case and, indeed, the circumstances might have justified the making of an indemnity costs order in reliance on r 14.6(4)(b) of the High Court Rules. Mr Molloy, however, does not seek that provided the disbursements incurred by his clients in attending this conference, which include air fares and accommodation, are included.

[5] The judicial settlement conference was established to give the parties an opportunity before trial to see if they could resolve this case. That opportunity, unfortunately, has been lost. The trial will proceed and the parties are put on notice that they must be ready.

[6] The defendant’s breach justifies an order being made in the terms sought by Mr Molloy: that is an order for costs based on Category 2 Band B of the High Court Rules. The allowances for steps taken are preparation of the memorandum for the

purpose of the judicial settlement conference and an attendance on an on call basis only at the hearing this morning. On that basis, I fix Category 2B costs. In addition, the defendant must pay the plaintiff’s disbursements, being the reasonable travel and accommodation costs which are to be approved by the Registrar before the order for costs is sealed.

[7] Accordingly, I order that the defendant pay costs and disbursements in the terms that I have just recorded.

[8] It is necessary to alter the directions for trial. Ms Hunter has explained the circumstances regarding her instructions and has helpfully acknowledged that the directions I make are not opposed by her client. They take into account the fact that the plaintiff does require a response to an order which was sealed on 1 February

2012, dealing with particular discovery and answers to interrogatories and which was made on an unless basis against the defendant.

[9] Having regard to that position, I vary the directions for trial made in the minute of 6 October 2011 so that the plaintiff’s brief of evidence must now be served by 10 February 2012 and the defendant’s brief of evidence must now be served by

21 February 2012.

[10] I also order that this order will be discharged in the event that the unless order sealed on 1 February 2012 is not complied with by the defendant. The reason for that is that the defendant would then be unable to defend the case and the hearing would simply proceed for the purposes of assessing damages only. On that understanding, the matter is to proceed.

[11] Because the judicial settlement conference has not proceeded I return the

_{plaintiff’s memorandum and supporting documents to counsel for the plaintiff.}

JA Faire
Associate Judge