WEIR BAXTER HOLDINGS LIMITED V MR WHIPPY NEW ZEALAND LIMITED HC WN CIV 2007-485-517

WEIR BAXTER HOLDINGS LIMITED V MR WHIPPY NEW ZEALAND LIMITED HC WN CIV 2007-485- 517 20 February 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2007-485-517BETWEEN WEIR BAXTER HOLDINGS LIMITED Plaintiff AND MR WHIPPY NEW ZEALAND LIMITED Defendant Decision: 20 February 2008DECISION OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: Gibson Sheat, Solicitors, Private Bag 31 905, Lower Hutt Vosper Law, Barristers & Solicitors, PO Box 489, Cambridge D M O'Neill, Barrister, PO Box 815, Waikato Mail Centre[1] In a judgment I gave in this proceeding on 31 July 2007, I set aside a statutory demand issued by the defendant and served on the plaintiff on 5 March 2007 subject to certain conditions outlined at paragraph 42 of that judgment. [2] Those conditions required the plaintiff by 24 August 2007 to pay into this Court the sum of $9,031.11 which was to be retained in Court and held on interest bearing deposit:"pending final resolution between the plaintiff and the defendant of the proper amount due to the defendant (if any) as claimed in the statutory demand."[3] In addition in that 31 July 2007 judgment at paragraph [43] I reserved leave for either party at any time on 5 days notice to apply to the Court for orders or directions with respect to the $9,031.11 retained. [4] As I understand the position the $9,031.11 was paid into Court on 24 August 2007 and has been held in an interest bearing account since that time. [5] Correspondence and emails have now been received from counsel for the parties in this matter which confirm that an order of the Disputes Tribunal made on 5 December 2007 ordered that the plaintiff was to pay to the defendant:"The sum of $7,499.00 from the balance held by the Court pursuant to the judgment of the High Court in CIV-2007-485-517". [6] This Disputes Tribunal order went on to provide at paragraph [3]:"3. The parties will need to apply to the High Court for directions to release the money pursuant to the High Court decision."[7] Although no formal application has been made to this Court pursuant to the leave reserved in paragraph [43] of my 31 July 2007 judgment, as I understand theposition the parties are happy for me to treat the email exchanges and correspondence which they have passed to the Court as an effective application for directions with respect to the $9,031.11 retained. I will now do so. [8] That said, as I see the position, the $9,031.11 retained in this Court was held for the benefit of both the plaintiff and the defendant pending the outcome of other proceedings which were contemplated between the parties (such as the Disputes Tribunal application here) or some other final resolution between them as to the proper amount due. [9] The parties did agree to proceed through the Disputes Tribunal. The defendant has now been successful in obtaining the order from that tribunal for payment of the major part of the sum retained – that is the sum of $7,499.00. [10] Given this, it is my clear view that the defendants are entitled to interest earned on this $7,499.00 whilst it was held by the Court on term deposit on a pro rata basis. [11] I reject the suggestion from counsel for the plaintiff that as there was no specific order made by the Disputes Tribunal requiring that interest be paid, all interest should be remitted to the plaintiff. The defendant has succeeded before the Disputes Tribunal to the extent of $7,499.00. It is entitled to this sum together with interest earned upon it so that the defendant, as far as possible, is able to be placed in the position of effectively receiving the benefit of this amount from 24 August 2007 at which point it was notionally due from the plaintiff. [12] In exercise of the leave reserved at paragraph [43] of my 31 July 2007 judgment the following orders are now made: a) The sum of $7,499.00 together with term deposit interest earned on this sum since 24 August 2007 when it has been held by the Court on term deposit is to be paid to the defendant or to the solicitors on the record for the defendant forthwith.b) The sum of $1,532.11 together with term deposit interest earned on this sum since 24 August 2007 when it has been held by the Court on term deposit is to be paid to the plaintiff or to the solicitors on the record for the plaintiff forthwith.'Associate Judge D.I. Gendall'