Ambrose v Pickard

[2013] NZCA 568

IN THE COURT OF APPEAL OF NEW ZEALAND

CA246/2012
[2013] NZCA 568

BETWEEN

CHAS AMBROSE
Appellant

AND

AMANDA PICKARD
First Respondent

TROY TAYLOR
Second Respondent

RINNAI NEW ZEALAND LIMITED
Third Respondent

Hearing:	11 November 2013
Court:	Stevens, Miller and Simon France JJ
Counsel:	I G Hunt for Appellant First Respondent in Person No Appearance for Second or Third Respondents
Judgment:	20 November 2013 at 11:00am

JUDGMENT OF THE COURT

A        The time for filing an appeal against the costs judgment is extended.

B        The appeal is allowed. 

CThe costs judgment of the High Court dated 6 October 2011 is varied by fixing disbursements payable to Mr Ambrose, for purposes of s 40 of the Legal Services Act 2001, at $24,147.05.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. The High Court delivered a judgment in which it specified, for purposes of s 40 of the Legal Services Act 2001, costs and disbursements that would have been awarded had the first and second respondents not been legally aided.[1]  The effect of the order was to allow the two successful defendants in the High Court, Mr Ambrose and Rinnai New Zealand Ltd, to request payment of costs and disbursements from the Legal Services Agency.

   [1]Pickard v Ambrose HC Wellington CIV-2003-091-143, 6 October 2011

2. In the judgment, which was delivered on 6 October 2011, MacKenzie J fixed disbursements of $24,147.05 for Rinnai.[2]  That sum was one-half of the disbursements incurred by Rinnai and Mr Ambrose.  Each had claimed a half share, Mr Ambrose adopting Rinnai’s submissions on the point.  The Judge omitted to include Mr Ambrose’s share. 

   [2]At [23].

3. Mr Ambrose asked the Judge to remedy this oversight.  Unhelpfully the application was presented as an application for recall, and MacKenzie J read it as such.  He declined, reasoning that the recall jurisdiction is exercised exceptionally where necessary to avoid injustice and no sufficient risk of injustice was created by Mr Ambrose’s inability to ask the Legal Services Agency to pay the disbursements.[3]  In this judgment MacKenzie J accepted that the omission was a mistake.[4]

   [3]Pickard v Ambrose [2012] NZHC 673.

   [4]At [10].

4. Mr Ambrose responded by filing an appeal which was intituled as an appeal against dismissal of the application for recall.  It is debatable whether this Court has jurisdiction to entertain such appeal, or will do so as a matter of policy, where an appeal against the original judgment would address the appellant’s complaint directly.  In the circumstances, we have treated the present appeal as an appeal against the judgment of 6 October.  Time is extended for filing the appeal, which was brought on 3 May 2012.

5. We are satisfied that the order ought to have included the disbursements sought by Mr Ambrose, who succeeded on the merits at trial.  That sum was incurred for disbursements that complied with r 14.12 of the High Court Rules. 

6. Accordingly, the appeal is allowed.  The judgment of 6 October is varied by fixing at $24,147.05 the disbursements which would have been awarded to Mr Ambrose but for the respondents’ legally aided status.  There will be no order for costs in this Court.

Solicitors:
Young Hunter, Christchurch for Appellant
McElroys, Auckland for Third Respondent