Estate of Ruruku v Elkington

[2008] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

CA71/2008
[2008] NZCA 303

BETWEENTHE ESTATE OF PENE TURI RURUKU, HAZEL RURUKU AND TAMA HOERA RURUKU

Applicants

ANDTUI ROSALIE ELKINGTON

First Respondent

ANDJENNY KING

Second Respondent

Hearing:12 August 2008

Court:Glazebrook, O'Regan and Robertson JJ

Counsel:S J Zindel for Applicants

H Roose for First Respondent
No appearance for Second Respondent

Judgment:13 August 2008  at 4 pm

JUDGMENT OF THE COURT

THE APPLICANTS ARE TO PAY COSTS OF $1,500.00 TO THE FIRST RESPONDENT, TOGETHER WITH USUAL DISBURSEMENTS.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       There was listed for hearing an application for special leave to appeal under r 29(4) of the Court of Appeal (Civil) Rules 2005.

[2]       Affidavits, memoranda and submissions were filed.  On 7 August 2008 a formal notice of abandonment was lodged.  Notwithstanding, both counsel appeared to be heard on the issue of costs.

[3]       Mr Roose drew attention to the time and effort which had gone into the preparation for the proposed hearing and noted that this had been in excess of 25 hours.

[4]       Mr Zindel accepted that the respondent was entitled to costs and usual disbursements.  He noted that if the matter had gone to hearing, in accordance with the costs rules (standard application, band A), the entitlement would have been $1,920.  His argument was that, because there was no actual hearing, two-thirds of that sum or $1,120 would be appropriate.

[5]       Nothing was advanced to suggest that if the matter gone to hearing (and the applicants had been unsuccessful) the respondent would have been awarded anything other than costs for a standard application on a band A basis.

[6]       In those circumstances, it is inevitable that the standard band A costs are the starting point.  There needs to be some recognition of the fact that the matter did not require a hearing on the merit.

[7]       The applicants are ordered to pay costs of $1,500.00 to the first respondent, together with usual disbursements.

Solicitors:
Zindels, Nelson, for Applicants