Booth v Heyward Holdings Limited (in liquidation)

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA435/2018
[2019] NZCA 211

BETWEEN	MAITLAND COLIN BOOTH Appellant
AND	HEYWARD HOLDINGS LIMITED (IN LIQUIDATION Respondent

Court:	French, Miller and Lang JJ
Counsel:	D J Ballantyne for Appellant D M Jackson for Respondent
Judgment: (On the papers)	11 June 2019 at 2.15 pm

JUDGMENT OF THE COURT

The appellant must pay the respondent costs on a Band A basis for a standard appeal but reduced by 50 per cent plus usual disbursements.

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REASONS OF THE COURT

(Given by Lang J)

Heyward Holdings Limited (Heyward) was placed in liquidation by order of the High Court on 5 May 2016. On 3 July 2018 Heyward obtained summary judgment against its sole director, Mr Booth, for the sum of $556,940.[1] That sum represented advances the Court found Mr Booth had received from the company prior to 31 March 2014.
[1]Heyward Holdings Ltd (in liq) v Booth [2018] NZHC 1339.
Mr Booth appealed against the entry of summary judgment. The appeal was set down to be heard in this Court on 29 May 2019. Mr Booth applied unsuccessfully on two occasions for an adjournment of the fixture. He then filed a notice abandoning his appeal on 28 May 2019. The only remaining issue relates to costs.
It is common ground that Mr Booth should pay costs to Heyward given the late abandonment of his appeal. The issue in dispute relates to the quantum of those costs.

The arguments

Mr Jackson points out that Heyward was effectively left in limbo during the period leading up to the hearing because it did not receive any written submissions from Mr Booth. There was no certainty, however, that he would abandon his appeal. Mr Jackson was therefore required to commence preparing for the hearing without knowing the argument Mr Booth would advance.
Mr Jackson contends Mr Booth should be required to pay costs equivalent to one-half of those payable for preparation on a Band B basis.[2] This represents a costs award in the sum of $6,690.
[2]Six days are allowed for preparation of an appeal falling within Band B.
Mr Ballantyne accepts on Mr Booth’s behalf that Heyward’s counsel must have commenced preparing for the hearing of the appeal. He points out, however, that three days’ preparation equates to the full allowance for preparation for the appeal, including preparation of written submissions, under Band A. He therefore submits that costs equivalent to one day’s preparation would appropriately reflect the time spent by Mr Jackson in reviewing the case on appeal.

Decision

We agree that a reduced award of costs is necessary to reflect the fact that Heyward’s counsel was not required to consider Mr Booth’s submissions or to prepare written submissions in response. We agree that an award of costs equivalent to one‑half of that which would otherwise be payable for preparation is appropriate.
The appeal plainly falls within Band A rather than Band B because it did not raise any complex issues. We therefore allow costs for a standard appeal on a Band A basis but with costs payable in relation to preparation reduced by 50 per cent to reflect the factors to which we have referred.

Solicitors:
Canterbury Legal Christchurch, for Appellant
Brandts-Giesen McCormick, Rangiora for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an appeal from Maitland Colin Booth against Heyward Holdings Limited (in liquidation). The dispute centred on the sum of $556,940, which Heyward Holdings Limited claimed as advances made to Mr Booth before 31 March 2014. Heyward Holdings Limited had secured a summary judgment against Mr Booth, and he appealed the decision. However, the appeal was ultimately abandoned by Mr Booth before the scheduled hearing date. The sole remaining issue was the quantum of the costs that Mr Booth should bear.

The legal issue before the Court of Appeal was the appropriate amount of costs to be awarded to Heyward Holdings Limited, given that Mr Booth had abandoned his appeal late. The Court had to determine the level of preparation Heyward's counsel had to undertake and how this affected the costs payable. Mr Booth's counsel argued for a reduced costs award, given that Heyward's counsel had not needed to prepare written submissions or respond to any arguments from Mr Booth. In contrast, Heyward's counsel contended that the full costs for preparation should be awarded because they had to prepare for the appeal without certainty that it would be abandoned.

The Court of Appeal agreed that a reduced award of costs was necessary, as Heyward's counsel did not need to consider Mr Booth's submissions or prepare written responses. The Court determined that an award of costs equivalent to half of what would otherwise be payable for preparation was appropriate, given the circumstances. The appeal was categorised as Band A, as it did not raise any complex issues. Therefore, the Court allowed costs for a standard appeal on a Band A basis but reduced the costs payable in relation to preparation by 50 per cent to reflect the factors considered.

The final orders of the Court of Appeal required Maitland Colin Booth to pay Heyward Holdings Limited costs on a Band A basis for a standard appeal but reduced by 50 per cent plus the usual disbursements. This decision was made in light of Mr Booth's late abandonment of his appeal and the resulting impact on the preparation costs for Heyward's counsel.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established