Curtis v Gibson

[2012] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

CA368/2010
CA285/2011
[2012] NZCA 109

BETWEEN  RICHARD JOHN CURTIS
First Appellant

AND  CURTIS HOLDINGS LIMITED
Second Appellant

AND  RODNEY MARK GIBSON
First Respondent

AND  HABODE IP LIMITED
Second Respondent

Court:             Randerson, Winkelmann and Keane JJ

Counsel:         D J Goddard QC and C Matsis for Appellants
D D Vincent for Respondents

Judgment:      27 March 2012 at 10.30 a.m.

(On the papers)

JUDGMENT OF THE COURT ON RECALL APPLICATION

A        The application for recall of judgment is dismissed.

BThe respondents, jointly and severally, must pay costs to the appellants as for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Randerson J)

1. On 5 August 2011 we delivered a judgment in this appeal and a related appeal (CA285/2011).  Relevantly for present purposes, we:

   (a)Allowed the substantive appeal (CA368/2010).

   (b)In substitution for the High Court judgment in favour of the respondents, entered judgment in favour of the appellants on the issue of liability.

   (c)Remitted to the High Court the appellants’ claim in that Court for an accounting of profits.

   (d)Ordered the respondents to pay costs on the appeal to the appellants.

2. The respondents subsequently sought leave, unsuccessfully, to appeal our judgment to the Supreme Court. 

3. On 16 December 2011, the respondents applied for a recall of our judgment.  The respondents contended that no costs award should have been made against the second respondent since we did not grant any relief against that respondent.  It was submitted we had overlooked that factor when making our costs award.

4. The appellants oppose the application for recall.  We have received written submissions from the parties and deal with the application on the papers.

5. We accept the submissions made on behalf of the appellants that no proper basis is established to justify a recall of our judgment.  These are our brief reasons:

• Both respondents were parties to the High Court proceedings and both appeared by common counsel in this Court.

• The accounting for profit which we ordered does not necessarily exclude the second respondent from consideration.  Our observations at [113](b) of our judgment do not preclude the possibility that the second respondent received the benefit of dealings with joint venture information or opportunities other than merely by reason of its ownership of relevant intellectual property rights.

• Even if no relief were ordered directly against the second respondent, there is no reason in principle why a costs order should not be made against both respondents where both were represented and opposed the appeal.

• The costs order against both respondents was justified in terms of rr 53 and 53A of the Court of Appeal (Civil) Rules 2005.

1. The application for recall of judgment is dismissed.  The respondents, jointly and severally, must pay costs to the appellants as for a standard application on a band A basis with usual disbursements.

Solicitors:

Gault Mitchell Law, Wellington, for Appellant

Thomas Dewar Sziranyi Letts, Lower Hutt, for Respondent