Johnson v Mansfield

[2008] NZCA 302

IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/06
[2008] NZCA 302

BETWEENLINDA CLARE JOHNSON

Appellant

ANDJOHN LEWIS MANSFIELD

Respondent

Counsel:S L Abdale for Appellant

D A Wood for Respondent

Judgment:13 August 2008 at 4.00 pm

JUDGMENT OF O’REGAN J

A        I award to the respondent costs of $500.

B        I make no award of costs in relation to the present application for costs.

CI direct the Registrar to disburse the $4,300 held as security for costs as follows:

(i)$500 to be paid to the appellant’s solicitors in payment of the costs award;

(ii)$3,800 to be refunded to the respondent’s solicitors.

REASONS

[1]       On 23 December 2005, the appellant filed a notice of appeal seeking to challenge a High Court decision to the effect that her claim against the respondent was time-barred.  On 3 December 2007 she filed a notice of abandonment of her appeal.  At the same time she requested that the Registrar return to her solicitors the sum of $4,300 held by the Registrar as security for costs.  It may well be that the appeal would have been treated as having been abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 (the Civil Rules) before the notice of abandonment was filed, but nothing turns on this.

[2]       Subsequently the respondent claimed costs of $1,770.  The appellant challenges the respondent’s entitlement to any costs and the matter has been referred to me by the Registrar for decision, exercising the power given to individual Judges of this Court under r 7(1)(a) of the Civil Rules.

[3]       The respondent claims costs of $1,770, made up as follows:

Receiving notice of appeal  $100.00

Considering the law, considering notice
of appeal  $500.00

Correspondences to and from the Court and copy
to counsel over security for costs and other
associated matters:  
           Letters out (5)  $150.00
           Letters in   (8)  $220.00

Receiving notification security paid  $  50.00

Receiving application for fixture  $  50.00

Receiving application for extension of time  $150.00

Receiving draft case on appeal  $300.00

Receiving confirmation of abandonment of appeal               $150.00

Correspondence to and from the Court and copying
to respondent about release of security for costs                   $150.00

Total (GST inclusive)         $1770.00

[4]       The appellant argues that the appeal was abandoned before the respondent had taken any steps and was withdrawn after the release of a decision of the Supreme Court which was inauspicious from the appellant’s point of view.  She therefore submits that no costs should be awarded.

[5]       The appellant points out that the appeal raised a legal issue in respect of which there were conflicting High Court decisions, and could not be classified as unmeritorious at the time it was filed.  It was only after the Supreme Court decision was made that it became apparent that it would be unlikely to succeed.  She contrasts the present case with the situation in Peters v Television New Zealand (2005) 18 PRNZ 149, where costs were awarded because the respondent had had to take a number of steps including preparing and filing submissions because the appeal was abandoned at a very late stage.  She also points out that the High Court Judge had directed that costs should lie where they fall, notwithstanding that the defence raised by the respondent had succeeded. 

[6]       Rule 44(3) of the Civil Rules makes it clear that the abandonment of an appeal does not affect the Court’s power to award costs.  That power is governed by rr 53 – 53J of the Civil Rules.  The respondent has not had to take any of the steps identified in Schedule 2 to the Civil Rules, but at least some of the steps taken by counsel for the respondent could loosely be classified as preparation work for which costs could have been awarded if the appeal had been heard.  I intend to consider the application on a broad brush basis.

[7]       As can be seen from the respondent’s claim, some of the costs claimed relate to the submissions and correspondence dealing with the present costs application.  I will deal with those separately.

[8]       I accept in general terms the submission made on behalf of the appellant that there was very little which the respondent was required to do in relation to the appeal itself, and the steps it had to take are not sufficient to justify a costs claim of the magnitude made by the respondent.  In particular, I do not see any justification for costs relating to the mere receipt of court documents.

[9]       In my view, an allowance for 0.3 days work properly reflects the minimal work required of the respondent in relation to the proposed appeal itself, which consists mainly of correspondence with the Court over the provision of security for costs and what appears to have been some preliminary research.  At a daily recovery rate of $1,600 (based on the rate prescribed in Schedule 2 to the High Court Rules for Category 2 proceedings which applies to steps taken in relation to standard appeals in this court on by virtue of r 53C(1)(a) of the Civil Rules) this leads to a figure of $480.  I round that out to $500.  I am satisfied that an award of that magnitude is appropriate and I order accordingly.  No claim was made for disbursements and no award is therefore made.

[10]     I direct the Registrar to deduct the $500 from the $4,300 held as security for costs and pay it to counsel for the respondent.  The remaining $3,800 of the amount held as security for costs should be returned to the appellant’s solicitors.

[11]     I make no award of costs in relation to the present costs application, as each side has had a measure of success.

Solicitors:
Tetley Jones Tom Sexton, Auckland for Appellant
Therese M Slade, Christchurch for Respondent