Dreamtech Designs and Productions Pty Limited v Clownfish Entertainment Limited

[2015] NZCA 593

IN THE COURT OF APPEAL OF NEW ZEALAND

CA347/2015
[2015] NZCA 593

BETWEEN

DREAMTECH DESIGNS AND PRODUCTIONS PTY LIMITED
Appellant

AND

CLOWNFISH ENTERTAINMENT LIMITED
First Respondent

CEQT LIMITED
Second Respondent

MICHELLE LOUISE JENSEN
Third Respondent

DAVID MATTHEW SMITH
Fourth Respondent

Court:

Randerson, Stevens and Winkelmann JJ

Counsel:

E C Gray and T J Walker for Appellant
D L Marriott for Respondents

Judgment:

(On the papers)

8 December 2015 at 3:30 pm

COSTS JUDGMENT OF THE COURT

A    The appellant must pay costs to the respondents on the abandonment of the appeal of $1,500 plus a disbursement for printing and binding of $80.00. 

BThe amount for costs is to be deducted from the security for costs paid by the appellant and the balance refunded to the appellant.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

1. This appeal was commenced on 19 June 2015 and the case on appeal filed on 18 September 2015.  The appellant applied to have the appeal dealt with on the Fast Track but, on 23 November 2015, filed and served a notice of abandonment. 

2. The respondents now seek costs based on 1.5 days.  This is resisted by the appellant on the basis that no steps have been reasonably required on the part of the respondents in respect of the appeal and certainly no steps in terms of sch 2 of the Court of Appeal (Civil) Rules 2005.  The appellant says that on the basis of standard appeal costs for one and a half days, the amount sought would amount to $3,345 plus disbursements.  The appellant submits no award of costs is justified.

3. We are satisfied a modest award of costs is required to reflect necessary advice to the respondents.  An appropriate award is $1,500.

4. The respondents also seek recovery of a disbursement of $440.57 for the printing and binding of their copy of the case on appeal.  This was undertaken to assist the appellant, a company based in Australia who filed four copies of the case on appeal but did not serve the respondent with a copy.  Emails between counsel for the respondents and a representative of the appellant indicate there was some confusion over the amount of the costs of printing and binding.  It appears it was not until after the expense was incurred by the respondents that the appellant was advised that the cost was substantially higher than the figure of $50–$80 initially advised and accepted by the appellant before the printing and copying was undertaken.

5. In the circumstances, we consider the disbursement should be limited to $80.00. 

Result

1. The appellant must pay costs to the respondents on the abandonment of the appeal of $1,500 plus a disbursement for printing and binding of $80.00. 

2. The amount for costs is to be deducted from the security for costs paid by the appellant and the balance refunded to the appellant.

Solicitors:
Simpson Grierson, Auckland for Appellant
Gaze Burt, North Shore City for Respondents