GREENMOUNT MANUFACTURING LTD V SOUTHBOURNE INVESTMENTS LIMITED HC AK CIV 2005-404-6675

GREENMOUNT MANUFACTURING LTD V SOUTHBOURNE INVESTMENTS LIMITED HC AK CIV 2005-404-6675 24 June 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-6675BETWEEN GREENMOUNT MANUFACTURING LIMITED Plaintiff AND SOUTHBOURNE INVESTMENTS LIMITED Defendant Hearing: 23 June 2008 Appearances: Mrs S Grant for applicant Mr T Herbert for respondent Judgment: 24 June 2008 at 12.00JUDGMENT OF ASSOCIATE JUDGE DOOGUEThis judgment was delivered by me on24.06.08 at 12 noon, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateCounsel:Mrs S Grant, Barrister, P O Box 4338, Auckland Lee Salmon Long, P O Box 2026, Shortland Street, Auckland[1] The applicant has sought costs. That is opposed by the respondent. The respondent's counsel essentially submits that the issues which the applicant raised as the basis for seeking further and better discovery had not been identified with precision by the applicant ahead of the hearing for further and better discovery and for orders that the respondent answer interrogatories. He says that the respondent was not asked to voluntarily supply the information specified in the application. [2] Mrs Grant says that she does not accept that submission. The question of whether the respondent/plaintiff had been ready, willing and able to perform its contract at the relevant time had been pleaded by the plaintiff but denied by the defendant/applicant. She said that further detail was given concerning the dimensions of the dispute about the parties being ready, willing and able in submissions which she filed ahead of the hearing. Even then, she says, the plaintiff/respondent did not voluntarily provide the information required and it was necessary to go to a hearing. She points out that the hearing took a day and that a reasonably lengthy judgment was issued thereafter. [3] In my view the starting point must be that costs follow the event. The applicant was successful. It is not to the point to observe that the applicant did not get everything it wanted on its application. In those circumstances the Rules give an entitlement to costs. The applicant had to come to Court to get what the respondent would not give it. That is the central issue. That is not a fact which has changed in the least by the applicant not getting everything that it asked for. [4] As to the apparent point made that the issues had not been adequately identified, I note that after the hearing before me there was a hiatus of some days before I gave my judgment. In that interim period the parties, very sensibly, conferred and were able to reach agreement on a number of issues which resulted in the applicant either abandoning part of its application or, alternatively, agreeing to voluntarily provide what the applicant wanted. By that point, if not earlier, all of the issues must have been clear to the respondent. Even in that circumstance, it opposed providing the particulars and interrogatories sought. In all these circumstances Iconsider that the applicant is entitled to costs on a 2B basis together with disbursements to be fixed by the Registrar. [5] There is one remaining issue to be dealt with and that is interest on costs paid in this proceeding to date. I am told that the defendant was required to pay costs in the Court of Appeal but as a result of the outcome of the Supreme Court hearing that costs order is to be reversed. Equally, the defendant succeeded in the Supreme Court and is entitled to costs at that level. The defendant seeks interest on all of those costs. That issue was one I did not deal with in the hearing before me at which I considered the discovery and interrogatories. It will have to be resolved either by agreement between the parties or by my hearing further from counsel. Counsel should confer and if the parties cannot agree, I will hear counsel at 9 a.m. one morning that is convenient to the parties and me. _____________ J.P. Doogue Associate Judge