Dunstan v Credit Union South

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA317/2020
[2022] NZCA 215

BETWEEN	ANTHONY DUNSTAN Appellant
AND	CREDIT UNION SOUTH First Respondent JANICE FREDRIC, PETER MCKNIGHT, LOUISE EDWARDS, PETER BOOTH AND SHONA CUMMING Second Respondents

Court:	Clifford, Thomas and Muir JJ
Counsel:	Appellant in person D G Hurd and E M Buckley for Respondents
Judgment: (On the papers)	30 May 2022 at 11.30 am

JUDGMENT OF THE COURT
Costs

The appellant must pay Unity Credit Union costs for a standard appeal on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Clifford J)

On 3 December 2021, this Court dismissed Mr Dunstan’s appeal in CA317/2020.[1]
[1]Dunstan v Credit Union South [2021] NZCA 656.
We reserved the issue of costs. We said:
[61] In the normal course, CU South would be entitled to costs for a standard appeal on a band A basis with usual disbursements. However, as CU South no longer exists following the transfer of its engagements, we understand the entitlement to costs would be that of its successor entity, Credit Union Baywide. The parties are invited to file further memoranda on who the appropriate party to award costs to is within 10 working days of this judgment. Costs are reserved in the meantime.
On 14 December 2021, counsel for the respondents filed a memorandum noting this Court’s understanding was correct: CU Baywide had become the successor entity to CU South. CU Baywide was therefore the party to whom costs should be awarded. However, counsel noted one further element: CU Baywide had formally changed its name to Unity Credit Union.[2] Counsel submitted costs on the appeal should be awarded to Unity Credit Union accordingly. For completeness, counsel noted the second respondents consented to the making of that order.
[2]That name change was registered with the New Zealand Companies Office and approved by the Registrar of Friendly Societies and Credit Unions. A copy of the certificate of incorporation for Unity Credit Union, confirming it is the entity which was previously CU Baywide, was attached to counsel’s memorandum.
Regrettably, that memorandum only came to our attention recently. No response from Mr Dunstan has been received.
We order that Mr Dunstan must pay Unity Credit Union costs for a standard appeal on a band A basis with usual disbursements.

Solicitors:
Gilbert Walker, Auckland for Respondents

CaseChat Overview and Summary

The Court of Appeal of New Zealand delivered its judgment in Dunstan v Credit Union South on 30 May 2022. The appeal was brought by Anthony Dunstan against Credit Union South, with Janice Fredric, Peter McKnight, Louise Edwards, Peter Booth, and Shona Cumming as additional respondents. The case arose from a dispute over costs that followed a dismissed appeal by Dunstan. The Court had previously dismissed Dunstan's appeal, reserving the issue of costs and inviting further memoranda on the appropriate party to award those costs to.

The legal issues before the Court involved the identification of the entity entitled to costs following the dissolution of Credit Union South and its subsequent succession by Credit Union Baywide, which had changed its name to Unity Credit Union. The respondents argued that, following these changes, Unity Credit Union was the appropriate entity to receive the appeal costs. They provided evidence of the name change and the formal registration of Unity Credit Union with the New Zealand Companies Office and the Registrar of Friendly Societies and Credit Unions.

The Court accepted the respondents' submissions that Unity Credit Union was the correct entity to receive the appeal costs, as it had succeeded Credit Union South. The Court noted that no response had been received from Dunstan regarding these submissions. Therefore, the Court ordered that Dunstan must pay Unity Credit Union the costs of the appeal, which were to be assessed on a band A basis with usual disbursements. This decision finalized the matter of costs in the appeal, providing clarity on the entity entitled to recover the costs following the corporate changes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established