Precast NZ Limited v Anystep Limited [2015] NZHC 2244 (17 September 2015)

Last Updated: 5 October 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3171 [2015] NZHC 2244

BETWEEN	PRECAST NZ LIMITED Plaintiff
AND	ANYSTEP LIMITED First Defendant
AND	PETER JOSEPH EVANS Second Defendant

	On the papers
Appearances:	M J Fisher for the Plaintiff B Gustafson for the First and Second Defendant
Judgment:	17 September 2015

_{JUDGMENT AS TO COSTS OF THOMAS J}

This judgment was delivered by me on 17Septmeber 2015 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date:...............................}

Solicitors:

Claymore Partners Limited, Auckland. Lowndes Jordan, Auckland.

PRECAST NZ LIMITED v ANYSTEP LIMITED [2015] NZHC 2244 [17 September 2015]

[1] By my decision dated 3 July 2015, I dismissed the application by the plaintiff, Precast NZ Limited, for summary judgment on the counterclaim by the first defendant, Anystep Limited. Precast had applied for an interim injunction and orders were made by consent. Precast also sought costs on its application for summary judgment against the second defendant, Peter Evans.

[2] The defendants have now filed a memorandum as to costs. They cannot agree with the plaintiffs as to the calculation of costs in respect of Precast’s summary judgment application, they seek increased costs on Precast’s unsuccessful application for summary judgment and they seek costs on the injunction. Precast opposes the application.

Costs on interim injunction

[3] I dealt with the question of costs on the interim injunction in my judgment. Precast had sought costs on the basis that, although orders were made by consent, the hearing was the first time the defendants offered the undertakings in the terms agreed. In my decision I said:

[64] Because the issue relates to that which will be decided in the substantive hearing, the costs of the interim injunction application should be determined when the result of those proceedings is known.

[4] The position was made clear in paragraph [70] which set out the result of the three applications where it was stated that Precast’s costs in connection with the interim injunction application were reserved until the outcome of the substantive proceedings were known.

[5] Anystep now seeks costs plus a “significant uplift” on the basis that the hearing achieved nothing more than was offered in the undertakings from the first call of the matter.

[6] For exactly the same reason as I reserved costs until the outcome of the substantive proceedings is known in respect of Precast’s application for costs, I do so in respect of Anystep’s application.

Quantification of costs on the plaintiff ’s summary judgment

[7] I awarded costs to Precast on a 2B basis. The parties are unable to agree the calculation of costs.

[8] Precast accepts that the correct daily recovery rate applicable at the time of hearing was $1990. There is an issue as to whether Precast is entitled to costs for preparation of written submissions, the bench bundle and appearance at the hearing to argue costs.

[9] Quite why the issue of costs could not have been resolved by the parties prior to the hearing is beyond me. I am now well aware of the background to Precast’s application for summary judgment from the volume of affidavit evidence which was required before the matter was settled. However, as the matter was to be dealt with at a hearing, Precast was obliged to prepare the bundle which incorporated all the relevant documents as well as preparing written submissions.

[10] In those circumstances, Precast is entitled to costs as sought. I note that the minimum time allocated in the schedule to the High Court Rules for a hearing is quarter of a day. For the same reasons, Precast is entitled to the disbursements sought.

Precast’s application for summary judgment on counterclaim

[11] Precast had applied for summary judgment in respect of Anystep’s counter claim. The grounds for the application were that the counterclaim could never succeed given that Anystep failed to serve the required notice under the licence agreement between the parties; Anystep had affirmed the contract; and damages could never be awarded because they were purely speculative.

[12] Anystep seeks increased costs on the basis that Precast took or pursued an unnecessary step or argument lacking merit or failed without reasonable justification to admit facts, evidence, documents or accept a legal argument.

[13] I am satisfied that Precast had a reasonable case to advance on its application. Its approach in respect of the failure to serve notice and affirmation was upheld.

[14] Precast’s application was unsuccessful on one ground only and even then, in my assessment, Precast had a reasonable argument as to the speculative nature of any damages.

[15] In the circumstances, I accept Precast’s submission that costs should be reserved until the disposition of the counterclaim at the substantive hearing.

Costs on costs application

[16] Finally, Precast seeks costs in connection with preparation of the submissions as to costs on a 1B basis. The application is dismissed. There were issues which required determination. In respect of the interim injunction application for costs, I accept that Anystep was entitled to make its application. Cost on the costs

_{application are to lie.}

Thomas J