Diver v Loktronic Industries Limited (in liquidation) (now Exindust Limited (in liquidation))
[2014] NZCA 457
•17 September 2014 at 11.45 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA258/2011 [2014] NZCA 457 |
| BETWEEN | STEPHEN JOHN DIVER |
| AND | LOKTRONIC INDUSTRIES LIMITED (IN LIQUIDATION) (NOW EXINDUST LIMITED (IN LIQUDATION)) SDR LIMITED ROY BOWYER TRIMEC TECHNOLOGY PROPRIETARY LIMITED NEIL RICHARD HINGSTON NEIL HINGSTON ENGINEERING LIMITED ASSA ABLOY NEW ZEALAND LIMITED |
| CA259/2011 | |
| AND BETWEEN | NEIL RICHARD HINGSTON NEIL HINGSTON ENGINEERING LIMITED |
| AND | LOKTRONIC INDUSTRIES LIMITED (IN LIQUIDATION) (NOW EXINDUST LIMITED (IN LIQUIDATION)) Respondent |
| CA260/2011 | |
| AND BETWEEN | ROY BOWYER TRIMEC TECHNOLOGY PROPRIETARY LIMITED ASSA ABLOY NEW ZEALAND LIMITED |
| AND | LOKTRONIC INDUSTRIES LIMITED (IN LIQUIDATION) (NOW EXINDUST LIMITED (IN LIQUIDTION)) STEPHEN JOHN DIVER SDR LIMITED NEIL RICHARD HINGSTON NEIL HINGSTON ENGINEERING LIMITED |
| Court: | Ellen France, Stevens and White JJ |
Counsel: | M H L Morrison and K D Puddle for Mr Diver |
Judgment: (On the papers) | 17 September 2014 at 11.45 am |
JUDGMENT OF THE COURT
The application for recall is dismissed. The Court’s judgment on costs stands.
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REASONS OF THE COURT
(Given by Ellen France J)
Introduction
In a judgment delivered on 4 April 2012, we allowed appeals by Messrs Diver, Hingston and Bowyer, and by Trimec Technology Pty Ltd (Trimec) and Assa Abloy New Zealand Ltd (AANZL) against findings of liability on various intentional torts.[1] Judgment in favour of Loktronic Industries Ltd (Loktronic) in the High Court of $1,420,721 plus interest was set aside. We also made an order that Loktronic pay Messers Diver, Hingston and Bowyer, and Trimec and AANZL costs on a band A basis for a complex appeal.
[1]Diver v Loktronic Industries Ltd [2012] NZCA 131, [2012] 2 NZLR 388.
Loktronic unsuccessfully sought leave to appeal to the Supreme Court[2] and also made an unsuccessful application to that Court for a recall of the decision declining leave.[3] Loktronic was subsequently placed into voluntary liquidation.[4]
[2]Loktronic Industries Ltd v Diver [2012] NZSC 60.
[3]Loktronic Industries Ltd v Diver [2012] NZSC 77.
[4]The company is now called Exindust Ltd (in liq).
Sometime after these events, Mr Bowyer, Trimec and AANZL made an application for an uplift of 50 per cent on the costs awarded to them. Mr Bowyer, Trimec and AANZL along with Mr Diver also applied for an order that costs be awarded personally against Loktronic’s former director, Peter Calvert.
Because we have already issued a judgment dealing with costs we have treated these applications as, effectively, applications for recall.[5] We treat the application as one advanced on the basis that for some “very special reason”, the judgment should be recalled.[6]
[5]For reasons of necessity White J has replaced Arnold J on the panel.
[6]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 per Wild CJ; see the application to this Court in Rainbow Corp Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 (CA); Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [10]; and Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23(b)(i)].
We deal first with the question of an uplift in costs and second with the application relating to Mr Calvert.
Uplift on costs
Our order on costs was in the following terms:[7]
… Loktronic must pay Messrs Diver, Hingston, and Bowyer, and Trimec and AANZL costs on a band A basis for a complex appeal. Costs in relation to the appeal by NHEL [Neil Hingston Engineering Ltd] lie where they fall. We certify for second counsel. Costs in the High Court are to be dealt with in that Court.
[7]At [136].
Rule 53C(1)(b) of the Court of Appeal (Civil) Rules 2005 states that the appropriate daily recovery rate for a complex appeal is:
… the current rate for a category 3 proceeding in the High Court, as set out in Schedule 2 of the High Court Rules, together with any uplift of up to 50% that the Court considers appropriate.
The uplift is sought on the basis of the appeal’s complexity. Counsel for Mr Bowyer, Trimec and AANZL relies on a number of factors including the number of appeals (three), the number of appellants (seven participating parties) and the fact there were three distinct causes of action. Mr Kennedy also relies on the further complexity arising from the filing of three cross-appeals. Finally, it is submitted the complexity is apparent in the length of submissions which were, with leave, allowed to exceed the 30 page maximum in the Rules[8] by up to a further 30 pages.
[8]Rule 41.
We agree with Ms Robertson for Mr Calvert that the Court has already dealt with complexity. There was an opportunity (and indeed a requirement) to deal with costs in the written submissions.[9] In fact, counsel for Mr Bowyer, Trimec and AANZL addressed costs in their written submissions saying this: “costs in the Court of Appeal, the appeals and cross-appeals should each be categorised as ‘standard’”. Accordingly, the order made reflects an increase on the costs sought by these appellants.
[9]Court of Appeal (Civil) Rules 2005, r 41(1)(c).
In any event, we still see no basis for either a global or specific uplift. In our view, the level of complexity is adequately reflected in the order we made. Ms Robertson submits that most of the cases where an uplift has been awarded relate to situations envisaged by rr 53E(2)(b)–53E(2)(d), for example, where unnecessary steps have been pursued or there has been a failure to comply with the Rules or with directions. Certainly none of these situations apply here.
Payment of costs by Mr Calvert
This application is advanced on the basis that Mr Calvert is “the real party” interested in the outcome[10] and the proceeding was not brought for the benefit of the creditors or shareholders of Loktronic generally but for his personal financial benefit. In her decision on costs in the High Court delivered on 30 May 2014, Courtney J accepted Mr Calvert was the real party and made an award of costs against him personally.[11]
[10]A reference to Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145 at [25(3)].
[11]Loktronic Industries Ltd v Diver [2014] NZHC 1189.
We consider the application that Mr Calvert personally pay costs should have been made to us at the time of the hearing. It appears the possibility of looking to Mr Calvert was an option from an early stage in the proceeding so there appears to be no good reason not to have sought such an award at the time. Importantly no such application was made to this Court. Nor are we convinced the merits are such as to warrant our reopening the matter now.
We note in that respect, first, that the same considerations applicable to this issue in the High Court may not necessarily apply in this Court. Second, we note that the information before us indicates the related company Loktronic Innovationz Ltd[12] and Mr Calvert provided personal guarantees as security for costs for Loktronic. On that basis, it is unclear why an order for joint and several payment is sought.
Result
[12]Now called Exinnov Ltd and also in liquidation.
The application for recall is dismissed. Costs can now be fixed by the Registrar, if necessary, in accordance with this Court’s order.
Solicitors:
Lowndes Jordan, Auckland for Mr Diver
Haigh Lyon, Auckland for Mr Hingston and Neil Hingston Engineering Ltd
Minter Ellison Rudd Watts, Auckland for Mr Bowyer, Trimec Technology Pty Ltd and Assa Abloy New Zealand Ltd
Baldwins Law, Auckland for Loktronic Industries Ltd (in liq)
Burton & Co, Auckland for Mr Calvert
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