Cricketer fails to get extra costs in court fight

Graham Vivian. File photo / Richard Robinsion.

Former test cricketer Graham Vivian has failed to get extra court costs out of a multi-national giant which bought the synthetic turf business he founded.

Companies directed by the former leg-spinning all-rounder - who played for New Zealand in the 1960s and early 1970s - are in a stoush with multinational giant Ten Cate, which paid almost $50 million for TigerTurf shares.

Vivian started TigerTurf in 1981, two years after his retirement from cricket.

By the time Ten Cate agreed to buy its shares in 2009, TigerTurf had expanded into Australia, the United Kingdom and the United States.

While the sale of the first two tranches for about $41 million went off without a hitch, the parties are in dispute over the third tranche - priced at $7.72 million.

After exercising its options to buy this third tranche in 2010, Ten Cate alleged breaches of warranty.

It alleged the TigerTurf directors failed to disclose contingent liabilities during due diligence.

Both sides have launched legal action against the other - Ten Cate in the United States and TigerTurf at the New Zealand High Court.

The case has already been to the Court of Appeal on pre-trial issues and the question of whether Texas was a more appropriate place than New Zealand for determining one part of the claim came back to the High Court last November to be re-argued.

Ten Cate argued part of TigerTurf's action in this country was a "tactical stunt" and wanted it struck out. But Justice Rebecca Edwards, in a decision released in February, did not think it could be dismissed as a strategic ploy.

TigerTurf then sought an increased costs award and said that Ten Cate's strike out application was "unnecessary, unmeritorious, and unreasonably prolonged the proceeding".

The local firm argued that standard costs of $7805 were inadequate to compensate it for the more than $40,000 it spent in legal fees.

However, Justice Edwards was not persuaded an increase was justified.

"Simply because [standard] costs are substantially less than those actually incurred is not sufficient to justify a departure from the principle that costs should be predictable and expeditious," she said in a decision released publicly this week.