Chen v Yang

[2009] NZCA 458

IN THE COURT OF APPEAL OF NEW ZEALAND

CA488/2008
[2009] NZCA 458

BETWEENPAUL YO CHEN

Appellant

ANDLIMIN YANG AND YANG LIU

Respondents

Court:O'Regan, Arnold and Ellen France JJ

Counsel:P O'Neill for Appellant

P J McPherson for Respondents

Judgment:6 October 2009 at 10.00 am

(on the papers):           

JUDGMENT OF THE COURT

The appellant is ordered to pay costs of $2,000 to the respondents.  This amount is to be deducted from the sum held by the Registrar as security for costs.

REASONS OF THE COURT

(Given by Arnold J)

[1]       The appellant has abandoned his appeal.  The respondents have applied for costs.  The appellant opposes that application.  Both parties have agreed to the Court dealing with this matter on the papers.

[2]       Mr McPherson for the respondents argues that the appeal was without merit and could not have succeeded.  He says that the respondents have incurred costs in excess of $10,000 in respect of the following matters:

(a)Review and consideration of the grounds of appeal and research and advice regarding them;

(b)Review and consideration of the case on appeal and discussions with the appellant’s counsel as to the documents to be included in the case on appeal;

(c)Preparation of an application for leave to adduce further evidence and an affidavit in support (prepared but not filed as at the dtae of abandonment);

(d)Other preparation for the hearing of the appeal, including research and advice.

He has not provided a detailed breakdown or indicated the time involved, however.

[3]       Mr McPherson seeks an order for costs against the appellant in the amount of $3,000 or such other sum as the Court sees fit, and an order that such costs be met from the funds held by the Registrar as security for costs. 

[4]       Mr O’Neill for the appellant argues in opposition that either no award of costs should be made, or, in the alternative, if an award is made, it should be less than the $3,000 sought by the respondents.  He refers to Johnson v Mansfield (2008) 19 PRNZ 105 (CA) and Gorrie Fuel SI Ltd v Gittoes [2008] NZCA 59 (although the latter was decided prior to the introduction of the new costs rules into the Court of Appeal (Civil) Rules 2005, with effect from 1 July 2008). Mr O’Neill did not accept that the appeal was without merit and challenged the need for the work referred to in [2] above.

[5]       In his response Mr McPherson points out that the appeal was commenced in August 2008 and was only abandoned on 25 May 2009, one month before the scheduled two-day fixture.  He noted that an extensive case on appeal had been filed, and reiterated the need for the work referred to in [2] above.

[6]       In principle, the respondents are entitled to an award of costs, although this is subject to the overriding discretion of the Court: see r 53A(a) of the Rules.  The appellant has not pointed to anything which would displace that principle in this case.  Accordingly, the question is simply what amount should be awarded.

[7]       As to that, we agree with Mr McPherson that it is material that the abandonment came only a month before the scheduled fixture.  Inevitably, the respondents were required to undertake some legal work by way of preparation, certainly more than was required in Johnson v Mansfield where $500 was awarded by way of costs.  Schedule 2 to the Rules allows three days for preparation for the hearing of an appeal on a band A basis.  In the circumstances of this case we allow slightly less than half of that, namely one and a quarter days.  The applicable daily rate is $1,600, which gives rise to a costs figure of $2,000.

[8]       Accordingly we order that the appellant pay costs of $2,000 to the respondents and that this amount be deducted from the amount held by the Registrar as security for costs.  We make no order for costs in respect of this application as each party has, to an extent, been successful.

Solicitors:
Lee Salmon Long, Auckland for Appellant
Hesketh Henry, Auckland for Respondents