Bryenton v Butler

[2018] NZHC 739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2926

[2018] NZHC 739

BETWEEN

JAMES LAWRENCE BRYENTON

Appellant

AND

MICHAEL T BUTLER

Defendant

Hearing:

On the papers

Appearances:

Appellant in person

S Elliott for Respondent

Judgment:

20 April 2018

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 20 April 2018 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

BRYENTON v BUTLER [2018] NZHC 739 [20 April 2018]

[1]    On 10 April 2018 I issued a minute in which I confirmed that Mr Bryenton’s appeal had been abandoned by virtue of his failure to provide security for costs as ordered. Counsel for the respondent now seeks an order for costs in his client’s favour. Mr Bryenton opposes the application and contends that he should be awarded costs instead.

[2]    Costs in civil proceedings are at the discretion of the Court.1 The guiding principle, however, is that the unsuccessful party should be required to contribute to the costs of the successful party.2

[3]    In the present case the respondent was clearly the successful party because the appeal was ultimately abandoned as a result of Mr Bryenton’s failure to provide security. It follows that he should be required to pay costs to the respondent.

[4]    I agree with Mr Bryenton that he should not be required to pay costs in respect of the first call of the appeal on 20 February 2018 because Mr Elliott did not attend that conference. Mr Elliott has not, however, made a claim in respect of that appearance. Nevertheless, he did file a memorandum on 13 February 2018 and in doing so clearly prepared for it.

[5]    The respondent is awarded costs on a Category 2A basis. Costs will be allowed in respect of the following steps as provided for in the Third Schedule to the High Court Rules 2016:

#	Step	Time
53	Commencement of response to appeal	0.3 days
54/10	Preparation for first case management conference	0.2 days
54/11	Filing memorandum for first subsequent	0.2 days
54/11	Filing    memorandum    regarding    abandonment   of appeal	0.2 days
Total time	0.9 days
Total costs on 2A basis	$2,007

Lang J

1      High Court Rules 2016, r 14.1.

2      High Court Rules, r 14.2(1)(a); Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

Solicitors:

S Elliott, Barrister, Auckland Ian Jespersen, Auckland

Copy to Appellant