Fugle v Vance

[2023] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA430/2022
 [2023] NZCA 116

BETWEEN	LESLIE WILLIAM FUGLE Applicant
AND	DAVID VANCE AND IAN MILLARD AS TRUSTEES OF THE ORANA TRUST First Respondents VEY GROUP LIMITED (IN LIQUIDATION) Second Respondent COMMISSIONER OF INLAND REVENUE Third Respondent

Court:	Gilbert and Collins JJ
Counsel:	F E Geiringer for Applicant R L Roff for First Respondents M G Colson KC and R L Pinny for Second Respondent K I S Nail-Leong for Third Respondent
Judgment: (On the papers)	20 April 2023 at 10.00 am

JUDGMENT OF THE COURT

The applicant must pay costs of $2,868 to the first respondents and $3,824 to the second respondent.

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REASONS OF THE COURT

(Given by Collins J)

1. On 16 February 2023, we declined Mr Fugle’s application for leave to appeal.[1]  A dispute has now arisen between the parties over costs.  Mr Fugle accepts that he is liable for costs but argues that costs should be shared between the first and second respondents.  The first and second respondents take issue with that proposition.

   [1]Fugle v Vance [2023] NZCA 21.

2. The first and second respondents seek costs awards totalling $6,692, comprising $2,868 for the first respondents and $3,824 for the second respondent.

3. Mr Geiringer, counsel for Mr Fugle, says that a single award of costs should be ordered because the first and second respondents took “essentially identical steps” in opposing the application.

4. We are satisfied that the first and second respondents are entitled to discrete awards of costs.  It is not correct to say that the first and second respondents took identical steps.  In particular:

   (a)The second respondent filed detailed submissions on whether or not an application to review a liquidator’s decision under s 284 of the Companies Act 1993 was an interlocutory application.  The first respondents, however, filed a memorandum simply abiding the decision of the Court on that issue.

   (b)The second respondent also filed detailed evidence in support of its opposition to the application.  The first respondents did not file any evidence in response to the application.

5. Although the submissions for the first and second respondents were aligned to a large degree, both parties opposed the application for leave to appeal and, in those circumstances, both are entitled to discrete awards of costs.

6. The costs sought by the first and second respondents are entirely appropriate.  We order accordingly.

Result

1. The applicant must pay costs of $2,868 to the first respondents and $3,824 to the second respondent.

Solicitors:
Dewhirst Law, Whanganui for Applicant
JAG Legal, Lower Hutt for First Respondents
Bell Gully, Wellington for Second Respondent
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Third Respondent