Challis v Destination Marlborough Trust Board Inc

[2004] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/03

BETWEENRICHARD QUENTIN CHALLIS AND WENDY ANN CHALLIS

Appellants

ANDDESTINATION MARLBOROUGH TRUST BOARD

First Respondent

ANDANTHONY PAGE PRESTON

Second Respondent

Hearing:8 December 2003

Coram:Glazebrook J
William Young J
Chambers J

Appearances:  E W Gartrell and C Skagen for Appellants

M Radich for First Respondent
P J Radich for Second Respondent

Judgment:19 May 2004 

JUDGMENT OF THE COURT AS TO COSTS
DELIVERED BY WILLIAM YOUNG J

[1]       Having considered the papers filed on behalf of the respondents in relation to their applications for costs, we have reached the view that no order should be made as to the costs of the appeal but that the respondents should have, jointly, a single order for costs against the appellants (who are jointly and severally liable) in the sum of $3000.00 together with disbursements (including travel and accommodation expenses of counsel if any) to be fixed by the Registrar in relation to the unsuccessful application for leave to appeal.

[2]       The respondents did not seek costs against Mr Challis in relation to the appeal given his legally aided status.  Although there may well have been irregularities in relation to the apparent grant of legal aid to Mrs Challis, the respondents acknowledged that what purports to have been a grant of legal aid was made.  We think that that purported decision must be treated as valid unless and until it is set aside.  Accordingly, we regard that grant as immunising Mrs Challis from an award of costs in relation to the appeal.

[3]       We note that we were given no information as to the contributions if any required to be paid and that the respondents do not seek an order for costs up to the level of the contributions. 

[4]       In relation to the application for leave to appeal, no grant of legal aid was made.  The appellants therefore have no immunity from an award of costs.  For this reason we have made a conventional award of costs against the respondents. 

Solicitors:
E W Gartrell, Wellington for Appellants
Radich Dwyer, Blenheim for Respondents