Ballantyne Trustees Limited v Papprill Hadfield & Aldous Solicitors Nominee Company Limited

[2017] NZCA 323

IN THE COURT OF APPEAL OF NEW ZEALAND

CA101/2017
CA545/2016
CA546/2016
[2017] NZCA 323

BETWEEN

BALLANTYNE TRUSTEES LIMITED, AVERILL NOELINE HEAD, BRUCE RAYMOND HEAD, CALMWATER ENTERPRISES PTY LIMITED AND SENG BOU KEUNG AS TRUSTEE OF THE GBR TRUST
Appellants

AND

PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LIMITED
First Respondent

DAVID D CRICHTON AND KIERAN A HORNE
Second Respondents

Counsel:

J W A Johnson and J I Taylor for Appellants
M E Parker for Second Respondents

Judgment:

(On the papers)

27 July 2017 at 11.30 am

JUDGMENT OF BROWN J

The appellants are jointly and severally liable to pay the second respondents costs in the sum of $7,225.20.

____________________________________________________________________

REASONS

1. At a telephone conference on 12 May 2017 Mr Johnson for the appellants advised that he had instructions to abandon the three matters CA545/2016, CA546/2016 and CA101/2017.  In the event that costs were not able to be agreed I directed that the second respondents were to file a costs memorandum by 2 June 2017 and the appellants were to file a memorandum in response by 16 June 2017.

2. The second respondents duly filed their memorandum.  The appellants did not.

3. The second respondents submitted a scale costs calculation on a Band B basis for the three matters in the sum of $6,021.00.  I accept their submission that, while only at an early stage, the three appeals required a significant amount of work.

4. The second respondents seek costs on the three matters on alternative bases:

   (a)first, on an indemnity basis under r 53E(3)(a) of the Court of Appeal (Civil) Rules 2005, in the sum of $7,803.00; and

   (b)secondly, scale costs as above but with an increase pursuant to r 53E(2)(b)(iv) of the Court of Appeal (Civil) Rules, in the sum of $7,225.20.

5. In support of the indemnity costs claim the second respondents contend that the appellants continued the appeals vexatiously, frivolously, improperly and unnecessarily, particularly in the context of the appellants’ continued failures in the High Court proceedings which have proceeded over a number of years.

6. While I agree that the appellants’ conduct of the litigation has been less than satisfactory, I do not consider that this is a case that warrants an award of costs on an indemnity basis.  However, the relatively modest increase of 20 per cent upon scale costs is amply justified due to the failure of the appellants to accept an offer to settle the appeals.  Costs are awarded in the sum of $7,225.20.

7. The appellants are jointly and severally liable to pay the second respondents costs in the sum of $7,225.20.

Solicitors:
Wynn Williams, Christchurch for Appellants
Darroch Forrest, Wellington for First Respondent
Parker Cowan, Queenstown for Second Respondents