Osborne v Auckland City Council (now Auckland Council)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA841/2011
[2012] NZCA 302

BETWEEN JOHN ANTHONY OSBORNE AND HELEN OSBORNE
Applicants

AND AUCKLAND CITY COUNCIL (NOW AUCKLAND COUNCIL)
Respondent

Court: Ellen France, Harrison and White JJ

Counsel: T J Rainey and J P M Wood for Applicants
C R Goode for Respondent

Judgment: 11 July 2012 at 3.00pm

(On the papers)

JUDGMENT OF THE COURT

The application for an order for increased costs is treated as an application to recall this Court’s judgment of 17 May 2012 and is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

By amended application dated 19 June 2012 the respondent applied for an order for increased costs following the judgment of this Court of 17 May 2012 dismissing the application by the applicants for leave to appeal.[1]
[1] Osborne v Auckland City Council [2012] NZCA 199.
The application for increased costs is opposed by the applicants.
In our judgment of 17 May 2012 we ordered the applicants to pay the respondent its costs for a standard application on a band A basis together with usual disbursements.
Having made that order, we would only have jurisdiction to consider the application for increased costs if we were to recall our judgment of 17 May 2012. We therefore treat the application for increased costs as an application to recall our judgment.
We are satisfied that none of the situations outlined in Horowhenua County v Nash (No 2)[2] justifying the serious step of a court recalling a judgment formally delivered applies here. We are therefore not prepared to do so.
[2] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
Having considered the respondent’s application for increased costs, we are not satisfied that it would have been appropriate in the circumstances of this case to have made such an order. The application for leave involved an important issue of limitation which the applicants were entitled to have determined by this Court.
Furthermore, the respondent did not seek an order for increased costs or to be heard on the question of costs at the hearing of the application for leave to appeal on 3 April 2012.
The application for increased costs, which we treat as an application for the recall of our judgment of 17 May 2012, is dismissed.

Solicitors:
Rainey Law, Auckland for Applicants
Heaney & Co, Auckland for Respondent

CaseChat Overview and Summary

The applicants, John Anthony Osborne and Helen Osborne, sought to appeal against a decision of the Auckland City Council (now Auckland Council). They applied for leave to appeal to the Court of Appeal, which was dismissed on 17 May 2012. The respondent then applied for an order for increased costs following the dismissal of the leave to appeal application. The applicants opposed the application for increased costs, and the Court of Appeal was required to determine whether it had jurisdiction to consider the application and whether it would be appropriate to grant the application. The Court of Appeal held that it could only consider the application for increased costs if it recalled its judgment of 17 May 2012. However, the Court of Appeal was not satisfied that any of the situations outlined in Horowhenua County v Nash (No 2) applied, which would justify the serious step of recalling a judgment formally delivered. Therefore, the Court of Appeal dismissed the application for increased costs, which it treated as an application to recall the judgment. The Court of Appeal was also not satisfied that it would have been appropriate in the circumstances of this case to have made such an order. The Court of Appeal noted that the application for leave involved an important issue of limitation, which the applicants were entitled to have determined by the Court of Appeal. Additionally, the respondent did not seek an order for increased costs or to be heard on the question of costs at the hearing of the application for leave to appeal.

The Court of Appeal held that the application for increased costs was dismissed. The Court of Appeal noted that the applicants were not liable for the costs of the application for increased costs. The Court of Appeal dismissed the application for increased costs, which it treated as an application to recall the judgment of 17 May 2012. The Court of Appeal noted that the application for leave involved an important issue of limitation, which the applicants were entitled to have determined by the Court of Appeal. Additionally, the respondent did not seek an order for increased costs or to be heard on the question of costs at the hearing of the application for leave to appeal. The Court of Appeal was not satisfied that it would have been appropriate in the circumstances of this case to have made such an order.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established