Strachan v Moodie

[2014] NZCA 626

IN THE COURT OF APPEAL OF NEW ZEALAND

CA380/2010
[2014] NZCA 626

BETWEEN	ELIZABETH GRACE STRACHAN Appellant
AND	ROBERT ALEXANDER MOODIE Respondent
APN SPECIALIST PUBLICATIONS NZ LIMITED Cross-Respondent

Counsel:

J O Upton QC for Appellant
R A Moodie in Person

Judgment:

(On the papers)

18 December 2014 at 11.30 am

JUDGMENT OF WHITE J

The sum of $2,370 paid into Court as security for costs is to be paid out to the appellant.

____________________________________________________________________

REASONS

1. On 21 June 2010 the appellant, Ms Strachan, filed an appeal against the judgment of Mallon J in Moodie v Strachan which involved strike out applications by both parties.[1]

   [1]Moodie v Strachan HC Wellington CIV-2007-485-2212, 21 May 2010.

2. On 13 July 2010 Ms Strachan paid $2,370 into Court as security for costs for her appeal.

3. By minute of Glazebrook J dated 13 April 2010 (in fact 2011) it was directed that the appeal be heard with a related appeal in CA115/2011 Moodie v Strachan.[2]

   [2]Strachan v Moodie CA380/2010, 13 April 2011 (Minute of Glazebrook J).

4. By notice dated 13 May 2014 Ms Strachan abandoned her appeal on the ground that subsequent decisions of the High Court had effectively rendered it nugatory. 

5. On 23 July 2014 the Registry contacted the parties inquiring about payment out of the security for costs.

6. On 29 July 2014 Mr Moodie wrote to the Registrar saying that he proposed to file a memorandum seeking costs against the security for costs held by the Court.

7. By memorandum dated 18 August 2014 Mr Moodie sought costs of $900.

8. By memorandum dated 25 August 2014 Mr Upton QC, senior counsel for Ms Strachan, filed a memorandum submitting that:

   (a)costs on the appeal (now abandoned) should lie where they fell;

   (b)no costs order should be made in favour of Mr Moodie as a litigant in person; and

   (c)Ms Strachan should recover in full the security for costs which she had paid into Court.

9. Mr Upton submitted that Mr Moodie was not entitled to costs as he was representing himself and because, at least in part, the costs claimed related to his memorandum to the Court opposing the Court of Appeal fixture date of 12 March 2011 being vacated which was unsuccessful as the fixture was vacated.

10. By memorandum dated 1 October 2014 Mr Moodie has responded to Mr Upton’s memorandum.

11. A practicing lawyer who represents himself in litigation may in appropriate circumstances be entitled to an order for costs: Brownie Wills v Shrimpton and R v Meyrick.[3]  Whether such an order should be made in the discretion of the Court will, however, depend on all the circumstances of the particular case.

    [3]Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327; and R v Meyrick [2008] NZCA 45 at [10].

12. Here I am satisfied for the following reasons that no order for costs should be made in favour of Mr Moodie:

    (a)the appeal was abandoned because it became superfluous after Mr Moodie abandoned his related appeal in CA115/2011 Moodie v Strachan; and

    (b)two of the three hours of time Mr Moodie claims for his $900 relate to the preparation of a memorandum opposing the vacating of the fixture in respect of which Mr Moodie was unsuccessful.

13. I therefore direct that the sum of $2,370 be paid by the Registry to Ms Strachan.

Solicitors:
Rainey Collins, Wellington for Appellant