DIACK V CASTLEGREGORY FARM LTD HC INV CIV 2003-425-000388

DIACK V CASTLEGREGORY FARM LTD HC INV CIV 2003-425-000388 16 February 2006IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY CIV 2003-425-000388BETWEEN PAUL ALLAN DIACK Plaintiff AND CASTLEGREGORY FARM LTD Defendant Hearing: 16 February 2006 Appearances: R T Chapman for Plaintiff CWF Moore for Defendant Judgment: 16 February 2006ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN As To Costs[1] There is before the Court applications for costs in relation to this proceeding. [2] This matter has a most unfortunate and chequered history. The Plaintiff commenced proceedings for relief against forfeiture. The matter first came before the Court as long ago as 21 August 2003. There was a hearing before me on 2 September that year. It was apparent at that stage there were considerable factual disputes between the parties, notwithstanding which, initially, the Defendant's counsel sought to persuade the Court to determine those factual disputes effectively on the papers. Eventually the inappropriateness of this course was accepted by counsel and an order was made granting relief. The relief was on terms relating to arbitration, payment of arrears and other such matters. There were costs awarded to the Defendant at that stage.[3] The matter has been to arbitration and there is an interim award. I have read that award. What it clearly shows is that there have been faults on both sides in relation to this dispute. In particular, it is clear that the claim by the Defendant of over $200,000 in relation to fertiliser was misconceived and simply wrong. Since then there have been ongoing disputes between the parties in relation to the interim award of the Arbitrator. I am unsure how this matter has continued in the form it has. The interim injunction granted by me when I granted relief made it plain that there was liberty to apply to all parties on three days notice. Furthermore, and in particular, there was leave granted to the Defendant to bring the matter back before the Court to apply to discharge the interim injunction. [4] Notwithstanding that, this matter has appeared in this Court since then before Masters and Associate Judges on no fewer than 11 occasions. It is unclear to me how the parties expected the Associate Judges to assist in the enforcement of an interim arbitration award. That was really what was being brought back. If, in fact, the Defendant wished to progress the matter it could have applied, under the leave reserved to it, and the matter would have come back before a Judge where some resolution would have taken place. Notwithstanding that, the matter kept coming back time and time again with really no satisfactory outcome. [5] The matter is further compounded because on the last occasion counsel for the Plaintiff did not even bother to attend. [6] My initial view was that costs should lie where they fall, a situation that was accepted by counsel for the Plaintiff. Counsel for the Defendant, however, did not accept that and sought to argue that solicitor and client costs should be granted to his client. [7] As I say, it is unclear to me how it was expected by the Defendant that this Court, in the context of relief against forfeiture proceedings, was somehow empowered to enforce disputes arising from an interim arbitration award. The Arbitration Act has been held on many occasions to be a code and the procedures under it cannot, somehow, be brought the under the aegis of these particular proceedings.[8] The matter is further complicated because the tenant did not renew the lease in this particular case. [9] Having considered the matter further, it seems to me there should be an award of costs in this particular case to the Plaintiff in the sum of $1,500 plus disbursements as fixed by the Registrar. [10] There, of course, remains outstanding the $500 due by the Defendant on the order made by Associate Judge Christiansen on 30 November last. The stay in relation to that is removed. [11] Effectively that means there are costs payable by the Defendant to the Plaintiff in the sum of $1,000 plus disbursements as fixed by the Registrar.Solicitors: Cruickshank Pryde, Invercargill for Plaintiff AWS Legal, Invercargill for Defendant