Collins & May Law v Memelink

IN THE COURT OF APPEAL OF NEW ZEALAND

CA159/2016
[2018] NZCA 29

BETWEEN

COLLINS & MAY LAW
Appellant

AND

HARRY MEMELINK AND PATRICK JOHN RENSHAW AS TRUSTEES OF THE LINK TRUST (NO 1)
First Respondent

HARRY MEMELINK
Second Respondent

Court:

Miller, Simon France and Toogood JJ

Counsel:

H M Twomey and M O Fee for Appellant
Q S Haines for Respondents

Judgment:

(On the papers)

1 March 2018 at 11.00 am

JUDGMENT OF THE COURT

The respondents must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

The Court has received counsels’ memoranda on costs, which were reserved at the hearing.
The appellant was successful and is entitled to costs for a standard appeal on a band A basis with usual disbursements on the appeal and cross-appeal.
There is a question whether the appellant should recover costs for various interlocutory matters concerning the payment of security for costs on the respondents’ cross‑appeal. These costs were incurred as part of the appeal proceeding to hearing and are properly recoverable. However, recovery should be based on band A of Schedule 2 to the Court’s rules, meaning that 0.4 days should be allowed for all the items claimed.
Finally, the appellant has requested that the Court certify for second counsel. We decline to do so.
The appellant may seal judgment for costs accordingly, and costs may be deducted from security held for the cross-appeal.

Solicitors:
Robertsons, Auckland for Appellant
QH Law, Levin for Respondents

CaseChat Overview and Summary

Collins & May Law appealed against the judgment of the High Court, which dismissed their claim for damages for professional negligence against Harry Memelink and Patrick John Renshaw as trustees of the Link Trust. The respondents cross-appealed against the decision to dismiss their claim for indemnity costs against the appellant. The Court of Appeal was required to determine whether the respondents were entitled to indemnity costs and whether the appellant was entitled to costs for various interlocutory matters concerning the payment of security for costs on the respondents’ cross-appeal.

The Court held that the respondents were not entitled to indemnity costs as they had not established that the appellant’s claim was frivolous or vexatious. The Court also held that the appellant was entitled to costs for the interlocutory matters concerning the payment of security for costs on the respondents’ cross-appeal, but that the costs should be based on band A of Schedule 2 to the Court’s rules, meaning that 0.4 days should be allowed for all the items claimed.

The Court declined to certify for second counsel as the appellant had not demonstrated that it was appropriate to do so. The appellant was entitled to seal judgment for costs accordingly, and the costs may be deducted from security held for the cross-appeal. The respondents were ordered to pay the appellant’s costs for a standard appeal on a band A basis and usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established