VALMAR TRUSTEE LIMITED v SMART WATER TECHNOLOGY LIMITED [2016] NZHC 1583 [13 July 2016]

VALMAR TRUSTEE LIMITED v SMART WATER TECHNOLOGY LIMITED [2016] NZHC 1583 [13 July 2016]

No uplift in costs was warranted. Although applicants pursued some irrelevant and inflammatory points and failed some timetabling directions, their overall case was not devoid of merit, adjournment requests were not unreasonable, the pre-action letter did not clearly constitute an offer to settle the proceeding, and the applicants had legitimate concerns given alleged statutory breaches and the need for audit verification; the proceeding remained an originating application for costs purposes. Therefore respondents are entitled only to 2B scale costs and disbursements totaling the assessed amounts.

Citation
[2016] NZHC 1583
Parties
First Applicant: Valmar Trustee Limited; Second Applicant: Embay Trustee Limited; First Respondent: Smart Water Technology Limited; Second Respondent: Christopher Stephen Harris; Third Respondent: Timothy James Stone
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 July 2016
Procedural Posture
Originating Application for Winding Up/liquidator Appointment Under Oppression (companies Act 1993 S 174) / Costs Judgment Following Substantive Hearing and Judgment
Outcome
Applicants ordered to pay respondents 2B scale costs; no increase in costs ordered under r 14.6; liability joint and several
Legal Topics
Oppression, Liquidation, Costs Awards, High Court Rules R 14.6, Pre Action Offers, Timetabling and Compliance With Directions
Company Law Civil Procedure Costs Law Oppression Liquidation Costs Awards High Court Rules R 14.6 Pre Action Offers +1 more

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Parties

Valmar Trustee Limited

First Applicant

Embay Trustee Limited

Second Applicant

Smart Water Technology Limited

First Respondent

Christopher Stephen Harris

Second Respondent

Timothy James Stone

Third Respondent

Procedural Posture

Originating Application for Winding Up/liquidator Appointment Under Oppression (companies Act 1993 S 174) / Costs Judgment Following Substantive Hearing and Judgment

Legal Issues

  1. 1 Whether increased costs should be awarded under r 14.6(3)(b) for unnecessary time or expense
  2. 2 Whether increased costs should be awarded under r 14.6(3)(d) because the proceeding should be treated as a trial for costs
  3. 3 Whether failure to accept a pre-action offer justified an uplift in costs

Ratio Decidendi

No uplift in costs was warranted. Although applicants pursued some irrelevant and inflammatory points and failed some timetabling directions, their overall case was not devoid of merit, adjournment requests were not unreasonable, the pre-action letter did not clearly constitute an offer to settle the proceeding, and the applicants had legitimate concerns given alleged statutory breaches and the need for audit verification; the proceeding remained an originating application for costs purposes. Therefore respondents are entitled only to 2B scale costs and disbursements totaling the assessed amounts.

Court Disposition

Applicants ordered to pay respondents 2B scale costs; no increase in costs ordered under r 14.6; liability joint and several

Orders

  • Applicants to pay respondents costs in the sum of 19178 NZD
  • Applicants to pay respondents disbursements in the sum of 220 NZD