Low Volume Vehicle Technical Association Incorporated v Brett

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA725/2017
[2019] NZCA 160

BETWEEN	LOW VOLUME VEHICLE TECHNICAL ASSOCIATION INCORPORATED Appellant
AND	JOHN BERNARD BRETT First Respondent ANTHONY PETER JOHNSON Second Respondent

Court:	Kós P and Clifford J
Counsel:	R J Gordon for Appellant and Second Respondent First Respondent in person
Judgment: (On the papers)	15 May 2019 at 3 pm

JUDGMENT OF THE COURT

The application is declined. No order for costs is made.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

On 26 March 2019 this Court allowed the appeal and dismissed the cross‑appeal.[1] A permanent injunction was granted against Mr Brett, and the case was remitted to the High Court for reconsideration of whether qualified privilege was an available defence against the Association’s claim. As to costs, Mr Brett was required to pay costs on a standard appeal on a band A basis together with usual disbursements.
[1]Low Volume Vehicle Technical Assoc Inc v Brett [2019] NZCA 67.
Mr Brett has now filed an “interlocutory application” to the effect that the award of costs be changed so “that costs lie where they fall”. The grounds offered are two. First, that it cannot be said that the Association was the successful party in the proceedings (or that Mr Brett was unsuccessful). Secondly, that Mr Brett lacks means to pay costs.

Discussion

The Court has delivered its judgment on the appeal. That judgment has been sealed. This is not an interlocutory application, therefore, and the Court has no jurisdiction to consider it. We will instead treat it as an application for recall, for which jurisdiction might lie. But we see no basis on which recall could be obtained on the grounds offered, even if the very limited threshold for recall could be met.
Neither premise for revision of the costs order is sustainable. The Association’s appeal was allowed, a permanent injunction was ordered, and the High Court was directed to reconsider its dismissal of part of the claim on the basis of qualified privilege. Mr Brett’s cross-appeal against Mr Johnson was dismissed. It cannot be said in these circumstances that the Court erred in ordering costs against Mr Brett. Finally, want of means is not a basis on which costs should not be awarded. Even if it were otherwise, that should have been raised at the hearing, and evidence to that effect produced. It was not, and has not been.

Result

The application is declined. No further order for costs is made.

Solicitors:
Minter Ellison Rudd Watts, Wellington for Appellant and Second Respondent

CaseChat Overview and Summary

Low Volume Vehicle Technical Association Incorporated, the appellant, was engaged in a legal dispute with John Bernard Brett, the first respondent, and Anthony Peter Johnson, the second respondent, over the latter's cross-appeal. The case was before the Court of Appeal of New Zealand. The appellant sought a permanent injunction against Mr Brett and the reconsideration of qualified privilege as a defence against its claim. The first respondent filed an interlocutory application requesting the costs award be changed, arguing that the appellant was not the successful party and that he lacked the means to pay the costs.

The Court of Appeal had to determine whether the interlocutory application was appropriate, given that the judgment on the appeal had already been delivered and sealed. The Court further needed to assess the merits of the two grounds offered by the first respondent for revising the costs order: the appellant's success in the proceedings and the first respondent's inability to pay the costs.

The Court of Appeal declined the interlocutory application, ruling that it did not have jurisdiction to consider it as such. Instead, the Court treated the application as one for recall, which might lie. However, the Court found no basis for recall on the grounds offered. The Court concluded that the appellant's appeal was allowed, a permanent injunction was ordered, and the High Court was directed to reconsider its dismissal of part of the claim on the basis of qualified privilege. Mr Brett's cross-appeal against Mr Johnson was dismissed. Therefore, the Court of Appeal could not be said to have erred in ordering costs against Mr Brett. Additionally, the Court found that the first respondent's lack of means was not a valid basis for not awarding costs. The Court emphasised that even if lack of means was a valid basis, it should have been raised at the hearing, and evidence to that effect should have been produced, which was not the case.

As a result, the interlocutory application was declined, and no further order for costs was made. The Court of Appeal's decision upheld the costs order against Mr Brett, maintaining the ruling from the initial appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established