Wholesale Distributors Ltd v Songle Supermarket Ltd

[2015] NZHC 809

IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002551 [2015] NZHC 809

BETWEEN

WHOLESALE DISTRIBUTORS

LIMITED Plaintiff

AND

SONGLE SUPERMARKET LIMITED First Defendant

DAVID GLENN BROWN Second Defendant

SONIA PAULINE BROWN Third Defendant

MATTHEW DAVID IGGULDEN and AMANDA KATHLEEN IGGULDEN Fourth Defendants

Hearing:

(On the papers)

Counsel:

David Chisholm QC and Rebecca Hopkins for the Plaintiff

Philip Rzepecky for the First to Third Defendants Kelly Quinn and Stephanie Thompson for the Fourth Defendants

Judgment:

23 April 2015

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 23 April 2015 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

WHOLESALE DISTRIBUTORS LIMITED v SONGLE SUPERMARKET LIMITED & ORS [2015] NZHC

809 [23 April 2015]

Introduction

[1]      On 17 October 2014 I delivered my decision in this matter declining to grant an interim injunction to Wholesale Distributors Ltd (“WDL”).  I awarded costs to the fourth defendants, Mr and Mrs Iggulden on a 2B basis.

[2]      WDL successfully appealed to the Court of Appeal.   The Court of Appeal granted WDL its injunction.  No order was made in relation to the costs in this Court and WDL now seek an order for costs in relation to the High Court Proceedings.

Jurisdiction

[3]      WDL argues that, given the generality of its appeal and the decision of the Court of Appeal my costs decision was also consequentially reversed.  Rule 14.8(2) of the High Court Rules makes it clear that the Court has the power to reverse, discharge or vary its own costs order if subsequently satisfied that the original order should not have been made. As such, there is no doubt that I have the jurisdiction to make the order sought should I determine that it is appropriate to do so.

Analysis

[4]      The central question in this case is whether costs should be awarded to an applicant who, after being unsuccessful in obtaining an injunction in this Court should be awarded costs following their success in the Court of Appeal.

[5]      The  rule  of  general  application  is  that  a  party  who  succeeds  in  an interlocutory  application  should  generally  receive  costs  on  that  application.    In New Zealand Motor Body Builders’ Association Inc v State Insurance Ltd, Barker J awarded costs in favour of the defendant who had successfully appealed against the

grant of an injunction to the plaintiff.1   Thus where a party is successful on an appeal

an award of costs will generally follow unless there is a good reason to depart from the general principle.

1      New Zealand Motor Body Builders’ Association Inc v State Insurance Ltd (1993) 6 PRNZ 577 (HC).

[6]      In the present case, the appeal was successful because, in the view of the Court of Appeal, I did not give sufficient weight to the degree to which Mr and Mrs Iggulden were responsible for their own predicament.   The Court of Appeal rejected Mr and Mrs Iggulden’s argument that they should not be trapped in their perilous financial circumstances.

[7]      However it is viewed, the outcome of the application was nothing other than a successful one for WDL and it follows that it is appropriate to grant costs on 2B basis for the application.  WDL also seeks that I certify for second counsel in relation to proceedings.

[8]      It has been observed that more modern approaches to trial have reduced the need for second counsel and that successful applications will be rarer than they were two decades ago.2    Nonetheless, the applicant does not need to show that the case was  beyond  the  capabilities  of principal  counsel, so  long as  it  was  sufficiently complex to justify certification for a second counsel.3

[9]      In  my  view  the  application  before  me  did  not  present  any  particular difficulties which might not be expected in an ordinary application for an interim injunction.  While the success of the appeal supports my view that the balance was a narrow one, the proceedings themselves were not so complicated that the defendants should be required to meet the cost of second counsel for WDL.

[10]     I therefore award costs on the application on a 2B basis for a single counsel.

Other matters

[11]     Along with the costs application, counsel filed a draft timetable for preparing for the substantive hearing.

2      Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 (HC) at [16]-[19].

3      Roading & Ashphalt Ltd v South Waikato District Council [2012] NZHC 2243 at [5].

[12]     Events have overtaken the suggested agreed timetable and accordingly the following orders are made:

(a)      the defendants will be file and serve any statements of defence, counterclaims and/or third party claims by 15 May 2015;

(b)any statements of defence to counterclaims or third party claims and statements of reply are to be filed and served by 29 May 2015;

(c)      verified lists and production of documents in accordance with Part 2 of Schedule 9 are to be completed on or before 5 June 2015;

(d)      inspection to be completed by 12 June 2015;

(e)       any interlocutory applications to be filed and served by 26 June 2015;

and

(f)      a case management conference (to set pre-trial directions and address any other matters, including schedule of interlocutory applications, if any) to be allocated on the first date available after 26 June 2015.

[13]     The Registrar is now to allocate a five day trial fixture on the first available date.

[14]     Leave is reserved to either party to apply for further directions.

Moore J

Solicitors/Counsel:

Lane Neave, Christchurch

Mr Quinn, Auckland
Mr Chisholm QC, Auckland
Mr Rzepecky, Auckland