BASF New Zealand Limited v Brian Roberts (1998) Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA201/2020
[2020] NZCA 662

BETWEEN	BASF NEW ZEALAND LIMITED Appellant
AND	BRIAN ROBERTS (1998) LIMITED Respondent

Court:	Courtney, Woolford and Mander JJ
Counsel:	T B Fitzgerald for Appellant P J Napier for Respondent
Judgment: (On the papers)	18 December 2020 at 11 am

JUDGMENT OF THE COURT
[Costs]

A The application for recall is declined.

BThere is an order for costs in favour of the respondent for a standard appeal on a band A basis, plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

On 8 December 2020 this Court dismissed the appeal brought by BASF New Zealand Ltd (BASF) against a decision of the High Court setting aside a statutory demand against the respondent, Brian Roberts (1998) Ltd (BRL).[1] BRL did not raise the issue of costs on the papers, nor in oral submissions. No order was made as to costs. BRL has applied for orders recalling the judgment and having it corrected so as to address the issue of costs. BASF opposes that course on the grounds that, since the issue was not raised, there is no error that would justify recall. We agree that there is no basis on which to recall the judgment. However, given that costs are at the discretion of the Court and generally follow the result, and that the issue was not raised at the time of the hearing, BRL is not precluded from making an application for costs now.
[1]BASF New Zealand Ltd v Brian Roberts (1998) Ltd [2020] NZCA 634.
Both parties have indicated their positions regarding costs in the event that we were prepared to address the issue. BRL seeks costs for a standard appeal with certification for second counsel. BASF opposes certification for second counsel. This was a straightforward appeal that does not warrant certifying for second counsel. There is accordingly an order for costs for a standard appeal on a band A basis, plus usual disbursements. We make no order for costs in respect of the application for recall.

Solicitors:
Bell Gully, Auckland for Appellant
Keegan Alexander, Auckland for Respondent

CaseChat Overview and Summary

BASF New Zealand Limited, the appellant, appealed a decision of the High Court that set aside a statutory demand against Brian Roberts (1998) Limited, the respondent. The Court of Appeal dismissed the appeal on 8 December 2020, and the respondent now seeks a recall of the judgment and correction to address the issue of costs. BASF opposed the recall on the basis that, since the issue of costs was not raised, there was no error that would justify the recall. The Court of Appeal agreed that there was no basis on which to recall the judgment. However, the Court noted that costs are at its discretion and generally follow the result, and that the respondent was not precluded from making an application for costs. The respondent sought costs for a standard appeal with certification for second counsel, which BASF opposed. The Court of Appeal found that the appeal was straightforward and did not warrant certification for second counsel.

The legal issue before the Court of Appeal was whether the judgment could be recalled and corrected to address the issue of costs. The Court of Appeal held that there was no basis on which to recall the judgment, as the issue of costs was not raised at the time of the hearing. However, the Court noted that costs are at its discretion and generally follow the result, and that the respondent was not precluded from making an application for costs. The Court of Appeal found that the appeal was straightforward and did not warrant certification for second counsel. The Court of Appeal made an order for costs for a standard appeal on a band A basis, plus usual disbursements. The Court of Appeal made no order for costs in respect of the application for recall.

In conclusion, the Court of Appeal dismissed the application for recall and correction of the judgment. The Court of Appeal found that there was no basis on which to recall the judgment, as the issue of costs was not raised at the time of the hearing. However, the Court of Appeal noted that costs are at its discretion and generally follow the result, and that the respondent was not precluded from making an application for costs. The Court of Appeal found that the appeal was straightforward and did not warrant certification for second counsel. The Court of Appeal made an order for costs for a standard appeal on a band A basis, plus usual disbursements. The Court of Appeal made no order for costs in respect of the application for recall.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established