HARBOUR CITY TOW AND SALVAGE (2003) LIMITED V WILSON PARKING NEW ZEALAND LIMITED HC WN CIV-2006-485-1017

HARBOUR CITY TOW AND SALVAGE (2003) LIMITED V WILSON PARKING NEW ZEALAND LIMITED HC WN CIV-2006-485-1017 10 October 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2006-485-1017IN THE MATTER OF the Companies Act 1993 BETWEEN HARBOUR CITY TOW AND SALVAGE (2003) LIMITED Applicant AND WILSON PARKING NEW ZEALAND LIMITED Respondent Hearing: 10 October 2006 Appearances: L. Pratley for Applicant D.C.E. Smith for Respondent Judgment: 10 October 2006 at 4.30pm In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4.30pm on the 10th day of October 2006.JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL[1] This judgment relates to costs sought by the respondent which were reserved in paragraph [69] of my oral Judgment dated 31 July 2006 on an application by the applicant to set aside a statutory demand issued by the respondent. [2] In that oral Judgment, an order was made setting aside the statutory demand subject to first, the payment of certain monies by the applicant both to the respondent and into Court, and secondly, a requirement for the applicant to take all reasonable steps to commence and prosecute a claim against the respondent with respect to counterclaims which the applicant says it has against the respondent.[3] In that 31 July 2006 Judgment, leave was reserved for either party to apply for further directions on three days notice. [4] The respondent by memorandum dated 14 September 2006 has now sought further directions. In addition, the respondent seeks an order for costs against the applicant. [5] The applicant in turn has responded in a Memorandum from Counsel dated 19 September 2006. [6] Issues had arisen regarding the late payment by the applicant of the amounts directed to be paid by it in paragraph [67] of my 31 July 2006 Judgment. Notwithstanding these delays, it seems that those outstanding payments have now been settled, and this is no longer an issue. Further, despite the requirement in paragraph [67](d) of my Judgment for the applicant to commence its counterclaim proceedings through the Wellington District Court promptly, at the time of the respondent's memorandum to this Court those proceedings had not been commenced. As I understand it, however, that has now been remedied. The District Court proceedings were filed on 6 October last. [7] Counsel confirmed before me that this effectively disposes of the respondent's formal complaints noted in its 14 September 2006 memorandum. [8] This, however, leaves the question of costs outstanding. [9] The memorandum from counsel for the respondent and the memorandum in reply from counsel for the applicant both go on to deal with this issue of costs. [10] The respondent seeks costs from the applicant on a 2B basis with respect to the application to set aside the statutory demand upon the basis that it was substantially successful in opposing this application. In my Judgment of 31 July 2006 I ordered payment to the respondent of a total of $33,612.30 by the applicant, with the remainder of the respondent's statutory demand claim totalling $9,887.70 to be paid into Court pending the determination of the applicant's counterclaim.[11] The respondent properly noted that it has therefore been effectively 77% successful, the $33,612.30 payment it has received being 77% of the total $43,500.00 claimed. At the very least, therefore, the respondent says it should be awarded 77% of the total costs which would otherwise be payable on a 2B basis. [12] The applicant in turn acknowledges that it should be liable for costs, and accepts that a 77% award of category 2B costs would be reasonable under the circumstances. It disputes, however, any higher award of costs than this. [13] The respondent in turn suggests that because of the applicant's failure to honour the terms of the orders outlined in my 31 July 2006 Judgment by their respective due dates, the respondent has been put to considerable extra cost, in particular in filing and serving its memorandum of 14 September 2006, and appearing at this directions telephone conference. [14] I agree that the respondent should be compensated to some extent for the applicant's failure to honour the strict terms of those orders. [15] In my view, an award of an additional $500.00 to meet these costs is appropriate. [16] I am also satisfied that, as the respondent has effectively been 77% successful in opposing the application to set aside the statutory demand, an award of costs at the 77% level is appropriate. [17] As I understand the position, total costs on a 2B basis would amount to $4,800.00 here. 77% of this figure is $3,696.00. [18] Taking into account this $3,696.00, plus the $500.00 additional costs for the applicant's default noted in paragraph [13] above, an order is now made for the applicant to pay to the respondent costs totalling $4,196.00 in this matter. [19] Disbursements are also awarded to the respondent, these to be approved by the Registrar. As to this, however, I direct that airfares totalling $305.00 for the respondent's counsel to attend the hearing of the application on 31 July 2006 fromAuckland are approved. These airfares, in my view, are reasonable and in fact amount to a cheaper solution under the circumstances than briefing Wellington counsel for the hearing would have been. [20] So far as any other matters which might arise from my Judgment are concerned, leave is reserved for either party on 24 hours notice to apply to this Court for further directions. __________________________Associate Judge D.I. GendallSolicitors:Lance Pratley, Barrister & Solicitor, Wellington for Applicant Carter & Partners, Auckland for Respondent