ALPINE DRINKS NZ LTD v NEW ZEALAND MIRACLE WATER LTD [2022] NZHC 619
The plaintiff did not meet the high threshold for indemnity costs because there was a bona fide issue whether the defendant complied with the contract's 30 days' written notice requirement; however the plaintiff's procedural non-compliance justified a 50% uplift to scale costs from 24 November 2021, resulting in an...
Source-derived case information.
- Citation
- [2022] NZHC 619
- Parties
- Plaintiff: Alpine Drinks NZ Limited; Defendant: New Zealand Miracle Water Limited
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 31 March 2022
- Procedural Posture
- Contract Dispute and Interim Injunction Application / Costs Determination After Plaintiff Abandoned Injunction Application
- Outcome
- Indemnity costs refused; plaintiff ordered to pay the defendant increased scale costs and disbursements.
- Legal Topics
- Interim Injunction, Indemnity Costs, Compliance With Timetable Directions, Contract Cancellation and Notice
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alpine Drinks NZ Limited
Plaintiff
New Zealand Miracle Water Limited
Defendant
Procedural Posture
Contract Dispute and Interim Injunction Application / Costs Determination After Plaintiff Abandoned Injunction Application
Legal Issues
- 1 Whether indemnity costs were appropriate against the plaintiff
- 2 Whether plaintiff had an arguable entitlement to injunctive relief due to disputed compliance with notice clause
- 3 Whether failure to comply with timetable directions justified indemnity costs or other sanction
Ratio Decidendi
The plaintiff did not meet the high threshold for indemnity costs because there was a bona fide issue whether the defendant complied with the contract's 30 days' written notice requirement; however the plaintiff's procedural non-compliance justified a 50% uplift to scale costs from 24 November 2021, resulting in an order that the plaintiff pay the defendant increased costs of $7,170 and disbursements of $660.
Court Disposition
Indemnity costs refused; plaintiff ordered to pay the defendant increased scale costs and disbursements.
Orders
- Plaintiff to pay defendant costs of $7,170 and disbursements of $660; scale costs increased by 50% from 24 November 2021; application for indemnity costs dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
ALPINE DRINKS NZ LTD v NEW ZEALAND MIRACLE WATER LTD [2022] NZHC 619 [31 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-001798[2022] NZHC 619BETWEEN ALPINE DRINKS NZ LIMITEDPlaintiffAND NEW ZEALAND MIRACLE WATERLIMITEDDefendantHearing: On the papersJudgment: 31 March 2022JUDGMENT OF DOWNS J(Costs)This judgment was delivered by me on Thursday, 31 March 2022 at 4 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Epsilon Law, Auckland.Righteous Law, Auckland.KF Gould, Auckland.[1] The plaintiff markets bottled water. The defendant bottles water. On22 March 2021, the parties entered a manufacturing agreement in relation to bottledwater. Six months later, the plaintiff filed an application for an interim injunction,seeking to prevent the defendant from cancelling the agreement. The plaintiffultimately abandoned its application, leaving only costs, which I address here.[2] The defendant seeks indemnity costs of $14,170. It contends the plaintiff knewits application for an interim injunction was hopeless, and therefore acted "vexatiously,frivolously, improperly, or unnecessarily" in seeking one.1[3] Case law emphasises the high threshold in relation to indemnity costs. Putbroadly, a party must behave badly or very unreasonably to attract them.2[4] The threshold is not crossed here. While the defendant told the plaintiff it hadbreached the agreement, it is not clear the defendant provided the plaintiff 30 days'written notice of the alleged breaches before cancelling the agreement 2 July 2021 (asrequired by cl 14.1 of the agreement).3 So, there was some basis for the plaintiff tobelieve it was entitled to injunctive relief.4[5] The defendant also seeks indemnity costs because the plaintiff twice failed tocomply with timetable directions. The (high) threshold is not crossed here either,albeit scale costs should be increased by 50 percent (from 24 November 2021) torecognise the plaintiff's non-compliance. It follows the plaintiff must pay thedefendant (increased) costs of $7,170 and disbursements of $660...Downs J1 High Court Rules 2016, r 14.6(4)(a).2 Bradbury v Westpac Banking Corp [2009] 3 NZLR 400, (2009) 19 PRNZ 385 (CA) at [27] – [28].3 The defendant could not rely on its breach notice of 16 June 2021 for the obvious reason it wouldnot permit cancellation until mid-July 2021. The defendant's "meeting note" of 11 May 2021would have permitted cancellation 2 July 2021 if, and only if, it constituted written notice in termsof the agreement. Reasonable minds could differ on this point.4 This is not to conclude the plaintiff's case was strong.