Booth v Heyward Holdings Limited (in liquidation)

[2019] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA435/2018
 [2019] NZCA 211

BETWEEN	MAITLAND COLIN BOOTH Appellant
AND	HEYWARD HOLDINGS LIMITED (IN LIQUIDATION Respondent

Court:	French, Miller and Lang JJ
Counsel:	D J Ballantyne for Appellant D M Jackson for Respondent
Judgment: (On the papers)	11 June 2019 at 2.15 pm

JUDGMENT OF THE COURT

The appellant must pay the respondent costs on a Band A basis for a standard appeal but reduced by 50 per cent plus usual disbursements.

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REASONS OF THE COURT

(Given by Lang J)

1. Heyward Holdings Limited (Heyward) was placed in liquidation by order of the High Court on 5 May 2016.  On 3 July 2018 Heyward obtained summary judgment against its sole director, Mr Booth, for the sum of $556,940.[1]  That sum represented advances the Court found Mr Booth had received from the company prior to 31 March 2014. 

   [1]Heyward Holdings Ltd (in liq) v Booth [2018] NZHC 1339.

2. Mr Booth appealed against the entry of summary judgment.  The appeal was set down to be heard in this Court on 29 May 2019.  Mr Booth applied unsuccessfully on two occasions for an adjournment of the fixture.  He then filed a notice abandoning his appeal on 28 May 2019.  The only remaining issue relates to costs.

3. It is common ground that Mr Booth should pay costs to Heyward given the late abandonment of his appeal.  The issue in dispute relates to the quantum of those costs. 

The arguments

1. Mr Jackson points out that Heyward was effectively left in limbo during the period leading up to the hearing because it did not receive any written submissions from Mr Booth.  There was no certainty, however, that he would abandon his appeal.  Mr Jackson was therefore required to commence preparing for the hearing without knowing the argument Mr Booth would advance.

2. Mr Jackson contends Mr Booth should be required to pay costs equivalent to one-half of those payable for preparation on a Band B basis.[2]  This represents a costs award in the sum of $6,690.

   [2]Six days are allowed for preparation of an appeal falling within Band B.

3. Mr Ballantyne accepts on Mr Booth’s behalf that Heyward’s counsel must have commenced preparing for the hearing of the appeal.  He points out, however, that three days’ preparation equates to the full allowance for preparation for the appeal, including preparation of written submissions, under Band A.  He therefore submits that costs equivalent to one day’s preparation would appropriately reflect the time spent by Mr Jackson in reviewing the case on appeal. 

Decision

1. We agree that a reduced award of costs is necessary to reflect the fact that Heyward’s counsel was not required to consider Mr Booth’s submissions or to prepare written submissions in response.  We agree that an award of costs equivalent to one‑half of that which would otherwise be payable for preparation is appropriate. 

2. The appeal plainly falls within Band A rather than Band B because it did not raise any complex issues.  We therefore allow costs for a standard appeal on a Band A basis but with costs payable in relation to preparation reduced by 50 per cent to reflect the factors to which we have referred.

Solicitors:
Canterbury Legal Christchurch, for Appellant
Brandts-Giesen McCormick, Rangiora for Respondent