Beirne v Kidd - [2015] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-124 [2015] NZHC 3118

IN THE MATTER
of an appeal against a decision of the

District Court at Invercargill

BETWEEN

GRAHAM HENRY BEIRNE Appellant

AND

CHARLES EDWARD FRANCIS KIDD Respondent

Hearing:
8 December 2015

(On the papers)

Counsel:

W J Hamilton for Appellant
R T Chapman for Respondent

Judgment:

8 December 2015

JUDGMENT OF MANDER J

[1] Mr Graham Beirne and Mr Charles Kidd have been embroiled over a dispute regarding alterations Mr Kidd carried out on Mr Beirne’s recreational campervan (RV). Mr Kidd sued for the unpaid portion of the works which he claimed were due and owing. Mr Beirne counterclaimed for sums which he claimed were necessary to rectify deficiencies in Mr Kidd’s work.

[2] In the District Court Mr Kidd was awarded $28,262.06 (including GST). This was after Mr Kidd reduced his claim by the cost of the first damaged windscreen and Mr Beirne had paid $12,832.52, which was not contested as being other than owed for the work completed.1 Mr Beirne was awarded $3,128.62 on his counterclaim of $17,867.48 (including GST). On appeal to this Court, Mr Beirne
was substantially successful.2

1 Kidd v Beirne DC Invercargill CIV-2012-025-513, 7 November 2014.
2 Beirne v Kidd [2015] NZHC 2151.

BEIRNE v KIDD [2015] NZHC 3118 [8 December 2015]

[3] The issue of costs in the District Court and this Court remains outstanding.

High Court costs

[4] The parties are agreed that costs ought to follow the event in Mr Beirne’s favour on the basis he was the substantial victor in this Court. The parties are agreed that costs should be fixed on a 2B basis in the sum of $12,821 together with disbursements in the sum of $1,542. Accordingly, there will be an order awarding Mr Beirne costs on that basis.

District Court costs

[5] The parties have been unable to reach agreement as to the appropriate award of costs in respect of the District Court proceeding.

Jurisdiction

[6] Neither party has identified the juridicial basis for making a costs award in respect of the lower Court hearing the subject of the appeal, nor has any party articulated the relevant principles. This raises two issues:

(a) whether appellate courts possess jurisdiction to make awards of costs in relation to proceedings conducted in the court below in the absence of the issue having been determined before that Court; and

(b)the approach to appellate courts of costs in relation to decisions under appeal.

[7] As to the first question, I am satisfied this Court is possessed of the requisite jurisdiction to make a costs award in respect of proceedings conducted in a court below. Rule 20.19 of the High Court Rules relevantly provides:

20.19 Powers of court on appeal

(1) After hearing an appeal, the court may do any 1 or more of the following:

(a) make any decision it thinks should have been made: (b) direct the decision-maker—

(i) to rehear the proceedings concerned; or

(ii) to consider…

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 Beirne v Kidd

Details

AGLC: Beirne v Kidd [2015] NZHC 3118
Case: [2015] NZHC 3118
Decision Date: 8 December 2015

CaseChat Overview and Summary

In Beirne v Kidd, the High Court addressed an appeal regarding a dispute over alterations made by Charles Kidd to Graham Beirne's recreational vehicle. Kidd sued Beirne for unpaid work, and Beirne counterclaimed for costs to rectify deficiencies in Kidd's work. The District Court had previously awarded Kidd $28,262.06 and Beirne $3,128.62 on his counterclaim. On appeal, Beirne was substantially successful, and the court was tasked with resolving the outstanding issue of costs in both the District Court and the High Court.

The court considered whether it had jurisdiction to make a costs award in respect of the District Court proceedings, given that the issue had not been determined before that Court. The court found that it possessed the requisite jurisdiction under Rule 20.19 of the High Court Rules, which allows the court to make any order it thinks just, including any order as to costs, after hearing an appeal.

The court also examined the principles guiding the appellate court's approach to costs in relation to decisions under appeal. The court adopted the "costs here and below" principle, which means the appellate court orders that a successful appellant is to receive costs on the appeal and in the Court below. However, the court noted that costs are always at the discretion of the Court and what is required is that the award does justice as between the parties.

The court concluded that both parties could claim some success in the context of the litigation. Beirne effectively achieved an outcome that reflected his best offer before trial in settlement of the dispute, while Kidd ultimately obtained an award in his favour, albeit reduced as a result of the appeal. Given the mixed overall result of the litigation, the court decided that the fairest outcome, as it relates to the District Court proceeding, is to let costs lie where they fall.

The court made the following orders: (a) Kidd is ordered to pay Beirne costs on appeal in the sum of $12,821 together with disbursements in the sum of $1,542; and (b) costs in respect of the District Court proceeding are to lie where they fall.

Orders