HI DEFINITION LIMITED V CITYWIDE ELECTRICAL LIMITED HC AK CIV 2007-404-3664

HI DEFINITION LIMITED V CITYWIDE ELECTRICAL LIMITED HC AK CIV 2007-404-3664 14 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-3664BETWEEN HI DEFINITION LIMITED Plaintiff AND CITYWIDE ELECTRICAL LIMITED Defendant Judgment: 14 July 2008 at 3.00 pmJUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALLThis judgment was delivered by Associate Judge Gendall on 14 July 2008 at 3.00 p.m. pursuant to r 540(4) of the High Court Rules 1985.Solicitors: Farry & Co, Solicitors, PO Box 91212, Auckland Turner Hopkins, Solicitors, PO Box 33-237, Takapuna, Auckland[1] In a judgment I gave in this matter on 10 March 2008 I made an order staying this liquidation proceeding and restraining the plaintiff from publishing the advertisement of the application. The orders made were conditional upon first the defendant paying into Court the sum of $19,999.00 (the amount in dispute) and secondly the defendant issuing proceedings in the District Court to enforce the counter claim it maintained it had against the plaintiff and thereafter pursuing those proceedings to conclusion with all due speed and expedition. [2] As to costs, these were reserved with directions made as to the exchange of memoranda from counsel. [3] Counsel for the plaintiff has now filed a memorandum as to costs dated 11 March 2008 and counsel for the defendant a similar memorandum dated 17 March 2008. Unfortunately, it seems that these memoranda may have been mislaid in the Auckland Court Registry, and they were only referred to me this morning, 14 July 2008. [4] I apologise to the parties and counsel for this delay. I have now had an opportunity to consider the memoranda however and give my decision on this costs question. [5] The starting point in this matter must, of course, be r.47(a) High Court Rulesand the fact that on 10 March 2008 the defendant succeeded before me in having the liquidation application stayed. As I have noted above, however, the stay order was made on the strict basis that the amount in question was paid into Court and proceedings were issued and pursued with regard to the counter claim which the defendant maintained it had against the plaintiff for this "disputed" debt. [6] In granting the defendant's application and making the orders sought, in my judgment of 10 March 2008, I expressed concern at the approach the defendant had taken in this long running proceeding, the very late filing of affidavits on behalf of the defendant and my concern over what I have described as "grave doubts as to the genuineness of the dispute which the defendant has rather belatedly raised concerning the debt here".[7] Essentially, as I noted at paragraph [41] of that 10 March 2008 decision, matters concerning the solvency of the defendant company tipped the balance in its favour in granting the application for stay. [8] In the memoranda which have been filed by counsel for both the plaintiff and the defendant, each party seeks costs with respect to the stay application against the other. [9] In my view, in this case the appropriate course is for costs to lie where they fall. Although the defendant has notionally been successful in its stay application, the order for stay was made with some reluctance and upon the strict conditions noted including that the counter claim defence raised at the eleventh hour was to be properly pursued. [10] Although some sympathy must rest with the position which the plaintiff found itself in here given the very late filing of the defendant's affidavits in support of its stay application, once a payment of the debt in question was made (and it must be noted in this regard that in a Minute on 18 July 2007, Associate Judge Abbott stated that this sum had been paid to the defendant's solicitors trust account which"appears to be sufficient to rebut the presumption of insolvency") this should have had some impact upon the plaintiff's opposition to the present application. [11] For all these reasons, in my view, costs here should lie where they fall. [12] There is to be no order as to costs.'Associate Judge D.I. Gendall'