HWADRO INTERNATIONAL TRADING LIMITED v MOA BREWING COMPANY LIMITED [2023] NZHC 3420

HWADRO INTERNATIONAL TRADING LIMITED v MOA BREWING COMPANY LIMITED [2023]NZHC 3420 [29 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-255[2023] NZHC 3420BETWEEN HWADRO INTERNATIONALTRADING LIMITEDPlaintiffAND MOA BREWING COMPANY LIMITEDDefendantHearing: (On the papers)Appearances: P S Kim for PlaintiffG D Simms and N F D Moffatt for DefendantJudgment: 29 November 2023JUDGMENT OF ASSOCIATE JUDGE LESTER(costs)This judgment was delivered by me on 29 November 2023 at 11:30ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar[1] On 13 September 2023, I released a decision in respect of the application byMoa Brewing Company Limited (Moa) to strike out Hwadro International Limited(Hwadro)'s claim, or for summary judgment, or for security for costs.1 I concludedthe judgment by saying that while the strike out and summary judgment applicationswere dismissed, at the end of the day Moa had been largely successful in its challengeto the pleadings as they stood at that time. I granted Moa's application for security.I directed that while submissions on costs might be filed, if none were filed, Moawould be entitled to costs on a 2B basis.[2] The Registrar has just referred to me the memoranda on costs that were filedby the parties on 20 September 2023. I apologise to the parties for the delay in theircosts submissions being dealt with, but as I have said, they have only just been referredto me.[3] Having reviewed the conclusions in the judgment, I remain of the viewthat Moa was successful in its challenge to the pleading as it stood. I was clear at [49]that Hwadro's claim must be repleaded. This was a case of a defective pleading, albeitone that was not a write-off. Hwadro avoided its claim being struck out by a narrowmargin.[4] Moa was successful in its application for security.[5] Accordingly, I do not accept the submission of Mr Kim, counsel for Hwadro,that Moa's primary application, that is for strike out or for summary judgment, wasunsuccessful. Moa was able to establish that Hwadro's claim as it stood would notsucceed, but I concluded it might be saved by being repleaded. I note no newstatement of claim has been filed.[6] I do not accept Mr Kim's submissions that costs should lie where they fall.[7] Accordingly, there is an order that Hwadro is to pay Moa costs on a 2B basis.I do not allow three allowances for the three applications. There is merit in Mr Kim'ssubmissions that all three applications were made in the one document. I award one1 Hwadro International Trading Ltd v Moa Brewing Company Ltd [2023] NZHC 2555.allowance for the filing of an interlocutory application plus 50 per cent to recognisethe application covered three separate applications.[8] Mr Kim did not take issue with any other aspect of the costs schedule.[9] Accordingly, the costs award is $9,440.50. That figure is arrived at by takingthe total of 2B costs from the schedule of Mr Simms, counsel for Moa; removing threeallowances for three interlocutory applications, that is a total of $4,302.00 but addingback in an allowance for one interlocutory application with an uplift of 50 per cent forthe reasons I have given.[10] Disbursements as claimed are not in issue.[11] Accordingly, the total award of costs and disbursements in favour of Moa is$9,990.50. Counsel for Moa, while content to seek costs on a 2B basis, wished toreserve Moa's position that it could claim indemnity costs pursuant to its contract withHwadro.[12] I reserve leave for Moa to seek further costs in respect of this applicationshould it be established that Hwadro breached its contract with Moa by bringing theseproceedings.________________________________________Associate Judge LesterSolicitors:Glaister Ennor, Auckland (for Plaintiffs)Wynn Williams, Auckland (for Defendants)