Crown Equipment Limited v Hawk Packaging Limited [2013] NZHC 3021 (14 November 2013)

Last Updated: 3 December 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-441-000841 [2013] NZHC 3021

BETWEEN CROWN EQUIPMENT LIMITED Plaintiff

AND HAWK PACKAGING LIMITED Defendant

Appearances: D J Neutze for Plaintiff

M Macfarlane for Defendant

Judgment: 14 November 2013 (Determined on the papers)

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

_{as to costs}

[1] The defendant applies for costs in relation to an application for an order that the plaintiff answer interrogatories.

The fate of the interrogatories application

[2] The defendant applies for costs on the basis that it was in practical terms the defendant who succeeded on the application. The plaintiff/respondent opposes an award of costs on the basis that neither party was successful and that costs should lie where they fall.

[3] The defendant had initially administered interrogatories in the normal way. The plaintiff took objection to a number of the interrogatories with explanation of the grounds of objection. The defendant then made formal application for orders. The Court made directions as to the filing of opposition and of submissions and

_{allocated a hearing date.}

CROWN EQUIPMENT LIMITED v HAWK PACKAGING LIMITED [2013] NZHC 3021 [14 November 2013]

[4] The parties ultimately resolved the issue by having the plaintiff provide unsworn answers to some of the outstanding interrogatories. The defendant agreed to withdraw the application but on the basis that it would still be seeking costs in relation to the application.

The application for costs

[5] Mr Macfarlane has submitted a Schedule 3 calculation. Costs are claimed on a 2B basis in the sum of $4,179.00. Of that sum $2,985.00 (1.5 days) represents the preparation of written submissions.

[6] If there is to be any order for costs (which Mr Neutze opposes), Mr Neutze submits that there should be no allowance for preparation of written submissions. He notes that the defendant’s application was resolved without the plaintiff filing a notice of opposition. In effect he says that the defendant’s preparation of written submissions was premature.

Discussion

[7] Pursuant to r 14.1(1) High Court Rules all matters as to costs are in the discretion of the Court. There remains however the primary principle encapsulated by r 14.2(a) whereby costs follow the event.

[8] I am satisfied in this case that there is an element of success in relation to the defendant’s application. I am satisfied that the defendant should have some measure of costs. I would not consider it just that the defendant has the full measure of the costs of preparing submissions. Given that the plaintiff’s notice of opposition had yet to be filed and there were continuing discussions between the parties, I consider an allowance of approximately one third of the usual item for preparation of submissions would be appropriate.

[9] A rounded order of $2,000.00 costs would in my judgment be a just outcome, with disbursements on the filing fee also to be met.

Order

[10] I order –

The plaintiff is to pay to the defendant in any event the costs of the application for an order to answer interrogatories which I fix at

$2,000.00 together with a disbursement of $241.70.

Associate Judge Osborne

Solicitors:

Brookfields, Auckland

Sainsbury Logan & Williams, Napier.