Filleul Apartments JV Limited v Salis

[2019] NZHC 3088

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000008

[2019] NZHC 3088

BETWEEN

FILLEUL APARTMENTS JV LIMITED

Appellants

AND

SERGIO SALIS AND CHRISTOPHER ROBERTSON

Respondents

Hearing:	Determined on the papers
Counsel:	K J Jarvis and L Jensen-McCloy for Appellants L A Andersen for Respondents
Judgment:	26 November 2019

JUDGMENT OF GENDALL J

As to Costs

This judgment was delivered by me on 26 November 2019 at 11:30 a.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FILLEUL APARTMENTS JV LTD v SALIS [2019] NZHC 3088 [26 November 2019]

[1]    In a judgment I gave in this proceeding on 31 October 2019 I refused the application by the appellants, Filleul Apartments JV Limited, for leave to appeal earlier decisions in this proceeding relating to costs to the Court of Appeal.

[2]By memorandum dated 11 November 2019 the respondents now seek costs of

$2,939.50 calculated on a category 2A basis together with a filing fee of $110 and a sealing fee of $50 with respect to their successful opposition to the appellants. That memorandum was responded to by counsel for the appellants in a memorandum dated

19 November 2019, and  a  brief  reply  from  counsel  for  the  respondents  dated  20 November 2019 followed.

[3]    All those memoranda have now been referred to me. I now give my decision on the respondents’ application for costs on the leave application. Counsel for the appellant in her 19 November 2019 memorandum properly refers to a strong theme which permeated my substantive decision and my leave application decision in this proceeding which was the desirability of reaching a pragmatic outcome for these long- warring parties to draw to a close their “longstanding and bitter fight”. It is true to say that this Court was endeavouring to achieve this aim through the determination that costs of the proceeding at all levels should simply lie where they fell.

[4]    That said, in exercising my costs discretion here, I am of the clear view that any costs awarded in favour of the respondents on the leave application brought by the appellants (although unsuccessful) would be inconsistent with the finality this Court was endeavouring to achieve with prior decisions made.

[5]    That said, the respondents’ application for costs on the appellant’s unsuccessful for leave to appeal is refused. Costs on that matter are to lie where they fall.

...................................................

Gendall J

Solicitors:

Webb Farry, Lawyers, Dunedin A D Patterson, Dunedin

Guest Carter, Dunedin

Copy to:

Trevor Shiels QC, Barrister, Dunedin L A Anderson, Barrister, Dunedin