Baker v Hodder - [2019] NZCA 270

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA520/2016
[2019] NZCA 270

BETWEEN	CHRISTOPHER DUNCAN BAKER AND KATHRYN ANN BAKER Appellants
AND	WALLACE DOUGLAS HODDER AND ANN ADELE HODDER First Respondents KADD FARM LIMITED Second Respondent

Court:	Clifford, Simon France and Toogood JJ
Counsel:	N Jessen and T S D Gilchrist for Appellants J Eckford for First Respondents No appearance for Second Respondent
Judgment: (On the papers)	28 June 2019 at 2.30 pm

JUDGMENT OF THE COURT
(Costs)

The first respondents are to pay costs of $13,380.00 and disbursements of $5,070.92 to the appellants.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

Duncan and Kathryn Baker appealed to this Court from a decision of Ellis J in the High Court which had ordered them to sign a special resolution authorising the sale by the second respondent, Kadd Farm Ltd, of its principal asset — the Heron Creek farm.[1] Kadd Farm was owned as to 30 per cent by the Bakers and as to 70 per cent by the first respondents Douglas Hodder and Ann Hodder.
[1]Hodder v Baker [2016] NZHC 2384.
At the hearing of that appeal we concluded that, as the farm in question had been sold, and the proceeds used to pay the second respondent’s debts, the appeal was moot. We declined to consider the substantive appeal and formally dismissed it.[2]
[2]Baker v Hodder [2017] NZCA 355.
The Bakers appealed that decision to the Supreme Court. The Supreme Court granted leave on the question of whether or not this Court should have heard and determined the Baker’s appeal.[3] It also sought submissions on the substantive issue the Bakers had wished us to determine, namely whether the High Court had been correct to order them to sign the special resolution in question.
[3]Baker v Hodder [2017] NZSC 171.
The Supreme Court decided both issues before it in favour of the Bakers.[4] First, we were wrong not to have heard and determined the appeal: the costs order in the High Court could only stand if the High Court had been correct in the direction it made; there were questions of procedural fairness raised by the way in which the High Court had proceeded; and the question of whether an order under s 174 of the Companies Act 1993 should be made in circumstances such as these was one of public importance.[5]
[4]Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94.
[5]At [44].
Secondly, the High Court had been wrong to make the order it did.[6]
[6]At [74].
The Supreme Court awarded the Bakers costs before it and quashed the cost orders made in this Court and the High Court, directing that they should be re‑determined in light of its judgment.[7]
[7]At [76].
We have now received memoranda from the Bakers, the Hodders, and from the Bakers in reply. In this judgment, and as directed by the Supreme Court, we reconsider our previous…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Hodder

Details

AGLC: Baker v Hodder [2019] NZCA 270
Case: [2019] NZCA 270
Decision Date: 28 June 2019 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from the decision of Ellis J in the High Court, which had ordered the Bakers to sign a special resolution authorising the sale of a farm by Kadd Farm Ltd. The Bakers appealed to the Court of Appeal, which found the appeal to be moot because the farm had already been sold, and the proceeds used to pay the second respondent’s debts. The Court declined to consider the substantive appeal and formally dismissed it. The Bakers then appealed the decision to the Supreme Court, which granted leave on the question of whether the Court of Appeal should have heard and determined the Baker’s appeal. The Supreme Court decided both issues before it in favour of the Bakers, holding that the Court of Appeal was wrong not to have heard and determined the appeal, and that the High Court had been wrong to make the order it did.

The Court of Appeal reconsidered its previous costs decision, which was to make no order as to costs. The Bakers argued that costs should follow the event in their favour on a standard appeal Band A basis plus disbursements, for a half-day appeal. The Hodders argued that the Court of Appeal should confirm its earlier decision, and make no order as to costs. The Court of Appeal held that the declaratory effect of the Supreme Court’s decision makes the Hodders the losing party before them on the Bakers’ appeal in this Court. The general principle is that costs follow the event, and there is no reason why that general principle should not apply. The Court of Appeal ordered the first respondents to pay the appellants one set of costs for the appeal in this Court as sought by the appellants: costs of $13,380.00 and disbursements of $5,070.92.

Orders