Appleton v Tauranga Law

IN THE COURT OF APPEAL OF NEW ZEALAND

CA858/2011
[2015] NZCA 184

BETWEEN	JOHN APPLETON AND NATALIE MARIE RYAN AS TRUSTEES OF THE APPLETON FAMILY TRUST First Appellant
JOHN APPLETON Second Appellant
AND	TAURANGA LAW Respondent

Court:

O'Regan P, French and Winkelmann JJ

Counsel:

D W Grove for Appellants
P J Napier and A K Hyde for Respondent

Judgment:

(On the papers)

21 May 2015 at 10.00 am

JUDGMENT OF THE COURT

The appellants must pay the respondent the costs and disbursements that have been agreed by the parties for a standard appeal on a band A basis with usual disbursements without any allowance for second counsel.

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REASONS OF THE COURT

(Given by French J)

On 6 September 2013, we allowed an appeal by the appellants against a decision of the High Court.[1]
[1]Appleton v Tauranga Law [2013] NZCA 420, [2013] 3 NZLR 777.
On 19 February 2015, the Supreme Court set aside our judgment including a costs order we had made in favour of the appellants.[2]
[2]Tauranga Law v Appleton [2015] NZSC 3.
The Supreme Court further directed that if the parties could not agree on costs in this Court, then we were to set costs in light of the Supreme Court judgment.
The parties have been able to agree on costs except on the issue of whether there should be an allowance for second counsel as claimed by the now successful respondent.
In our view, the claim for second counsel is not justified. This was a relatively simple appeal which turned essentially on its facts. It did not occupy significant hearing time.
We therefore decline to certify for second counsel.
We order that the appellants must pay the respondent the costs that have been agreed for a standard appeal on a band A basis with usual disbursements without any allowance for second counsel.

Solicitors:
Ellis Law, Auckland for Appellants
Keegan Alexander, Auckland for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by John Appleton and Natalie Marie Ryan, as trustees of the Appleton Family Trust, against Tauranga Law. The appellants sought to challenge a decision made by the High Court, which was subsequently overturned by the Court of Appeal. However, the Supreme Court later set aside the Court of Appeal's judgment, including the costs order that had been made in favour of the appellants. The Supreme Court directed that if the parties could not agree on costs in the Court of Appeal, the latter was to set costs in light of the Supreme Court judgment. The only issue that remained unresolved was whether there should be an allowance for second counsel as claimed by the now successful respondent.

The legal issues that the Court of Appeal was required to decide related to the costs associated with the appeal. Specifically, the Court had to determine whether the respondent was entitled to an allowance for second counsel, as claimed. The Court of Appeal examined the nature of the appeal and the amount of time it had occupied to determine whether the claim for second counsel was justified.

In its judgment, the Court of Appeal declined to certify for second counsel, stating that the appeal was relatively simple and had not occupied significant hearing time. The Court therefore ordered that the appellants must pay the respondent the costs that had been agreed for a standard appeal on a band A basis with usual disbursements without any allowance for second counsel. The Court of Appeal's judgment was based on the premise that the appeal did not require the expertise of a second counsel and that the costs associated with such expertise were not justified.

In conclusion, the Court of Appeal of New Zealand determined that the respondent was not entitled to an allowance for second counsel as claimed. The Court held that the appeal was relatively simple and had not occupied significant hearing time, and therefore the costs associated with a second counsel were not justified. The Court ordered that the appellants must pay the respondent the agreed costs for a standard appeal on a band A basis with usual disbursements without any allowance for second counsel.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established