Hickman v Turn and Wave Limited

[2011] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND

CA796/2009
[2011] NZCA 195

BETWEEN  HICKMAN & ORS
Appellant

AND  TURN AND WAVE LIMITED
Respondent

CA797/2009

AND BETWEEN             LESTER & ORS
Appellant

AND  GREENSTONE BARCLAY TRUSTEES LTD
Respondent

CA798/2009

AND BETWEEN             COLLINGWOOD & ORS
Appellant

AND  ICON CENTRAL LTD
Respondent

Court:             O'Regan P, Hammond and Randerson JJ

Counsel:         P J Dale, D W Grove and N R Campbell for Appellants
D J Chisholm and G P Blanchard for Respondent Turn & Wave Ltd
R B Stewart QC and D J Neutze for Respondent Greenstone Barclay Trustees Ltd
B O'Callahan and J Puah for Respondent Icon Central Ltd

Judgment:      18 May 2011 at 11.30 a.m.

(On the papers)

JUDGMENT (NO 2) OF THE COURT

A        By consent, the appeals of all remaining appellants are dismissed.

BEach of the respondents is entitled to costs and disbursements against the appellants jointly and severally in respect of each of the three appeals as specified in [6] to [8] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

1. In our judgment of 29 March 2011[1] we dismissed appeals relating to the five appellants named at [19] (Mr and Mrs Lester, Ms Janes, Mr and Mrs Britton, Mr Dwight and Ms Hunt, and Mr McFarlane).  We invited counsel to confer and inform the Court by memorandum how the appeals of the remaining appellants were to be dealt with.

   [1]      Hickman v Turn & Wave Ltd [2011] NZCA 100.

2. A joint memorandum has been filed indicating that all counsel are of the view that the first sentence of [19] of our judgment of 29 March 2011 does not strictly conform with the process directed by the President’s Minute of 12 August 2010.  However, all are now in agreement that all remaining appeals should be dismissed.  We order accordingly.

3. Counsel have not been able to agree in relation to costs.  The respondents seek costs as for a complex appeal together with a 50 per cent uplift pursuant to r 53C(1)(b) of the Court of Appeal (Civil) Rules 2005.  They also seek costs for steps not provided for in Schedule 2 of the Rules.  These relate to preparation in response to the application by the appellants for leave to amend the grounds of appeal and the pleadings.  The appellants oppose any increased costs and submit that costs should be fixed on the daily rate applicable to a category two proceeding in the High Court.

4. We are satisfied that costs should be fixed as for a complex appeal on a Band A basis.  We are not persuaded that there should be any uplift of those rates as sought by the respondents.  The appeal occupied four days and the additional time required to deal with the appellants’ application to amend will be reflected in the costs for the additional days.

5. However, we consider there ought to be an appropriate allowance for preparation in response to the application for leave to amend and for attendance at the pre‑hearing conference.  We are also willing to certify for second counsel in the case of each respondent.

6. On this footing, the daily recovery rates for each of the respondents will be $2,780 per day.  The number of days for TWL and Icon will for each be as follows:

Preparation for an attendance at pre-hearing conference	.3
Papers in opposition to application for leave to amend pleadings	2
Preparation for hearing of application to amend pleadings	1.75
Preparation for hearing of appeal	3
Attendance at hearing of appeal (principal counsel)	4
Appearance at hearing of appeal (second counsel)	2
Total	(Rounded)13

1. For Greenstone, the number of days will be 12.5 days since Mr Neutze was not present on the fourth day of hearing.

2. In addition, the appellants must pay disbursements as follows:

Greenstone (CA797/2009)	$3,988.98
TWL (CA796/2009)	$3,209.00
Icon (CA798/2009)	$3,811.80

Solicitors:
Ellis Law, Auckland for Appellants
Brookfields, Auckland for Greenstone Barclay Trustees Ltd
CMS Legal, Auckland for Turn and Wave Ltd
Carter & Partners, Auckland for Icon Central Ltd