SAFARI BBQ PRODUCTS LIMITED v SAFARI VERVAARDIGING CC [2022] NZHC 3149 [29 November 2022]

SAFARI BBQ PRODUCTS LIMITED v SAFARI VERVAARDIGING CC [2022] NZHC 3149[29 November 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-691[2022] NZHC 3149BETWEEN SAFARI BBQ PRODUCTS LIMITEDApplicantAND SAFARI VERVAARDIGING CCRespondentHearing: (On the Papers)Appearances: S Jeffs for ApplicantJ Marcetic for RespondentJudgment: 29 November 2022JUDGMENT OF ASSOCIATE JUDGE LESTER(Costs)[1] The respondent seeks that costs be fixed in respect of its largely successfuldefence of the applicant's application to set aside its statutory demand.[2] The respondent has the benefit of a solicitor-client cost clause in its contractwith the applicant.[3] Given the respondent is a South African company, it does not seek GST on thesolicitor-client costs claimed.[4] The amount claimed for solicitor-client costs is $36,459. Disbursements of$312.13 are sought.[5] The respondent has provided details of those involved in filing the applicationto set aside demand, their hourly rates and how much time they spent on the project.The invoices issued have been produced to the Court.[6] The wording of the solicitor-client costs clause is unambiguous.[7] In assessing whether the indemnity costs claimed are reasonable, the Courtassesses whether the tasks undertaken were reasonably necessary and were coveredby the contract and whether the charge rates were reasonable. However, the referenceto "reasonable" in the High Court Rules 2016 (the Rules) relating to costs based ona contractual right to recover actual costs does not import a discretion in the usualsense. Where a party has contractually bound itself to pay full solicitor-client costs,anything less than a full indemnity for costs properly incurred is inconsistent with thesuccessful parties' contractual rights.1[8] The applicant has not replied to the application for costs. Applicant's counseladvises they are no longer instructed.[9] In practical terms, the applicant has had more time than originally envisagedby my Judgment of 21 October 2022 to reply on the issue of costs.21 See the discussion at Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters)at [HR14.6.03(3)(e).2 Safari BBQ Products Ltd v Safari Vervaardiging CC [2022] NZHC 2741.[10] Taking a robust approach to confirmation of costs, as I am entitled to, and inthe absence of any objection within the timeframes allowed, indeed, within furthertime effectively allowed upon the Court calling for submissions from the applicant,there is an order that the applicant is to pay the respondent's costs and disbursementstotalling $36,771.13.[11] Mr David Bell, who is presently solicitor on the record for the applicant, hasinformally sought an order that he cease to be a solicitor on the record. I am notprepared to make that order on the basis of Mr Bell's brief memorandum. However,the practical point is this proceeding, in which Mr Bell was solicitor on the record isnow concluded save that the respondent may wish to seal this order for costs.However, once that is done the proceeding and Mr Bell's involvement in it will be atan end.[12] If Mr Bell wishes to pursue an order that he is no longer solicitor on the record,I am prepared to deal with that on a relatively informal basis but he will need to filea memorandum confirming he has complied with the requirements of r 5.40 of theRules.[13] I note Mr Bell says that Mr Erasmus, director of the applicant company, intendsto manage this proceeding himself. As I have said, there is effectively no life left inthis proceeding save for the sealing of this costs order. Of course, Mr Erasmus doesnot have a right to appear for the applicant in this Court._____________________________________Associate Judge LesterSolicitors:Bell Associates Lawyers, Auckland (for Applicant)Chapman Tripp, Auckland (for Respondent)Copy to counsel:S Jeffs, Barrister, Auckland (for Applicant)