HC Trustees 2010 Limited v Timaru District Council

[2020] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-000006

[2020] NZHC 2965

BETWEEN

HC TRUSTEES 2010 LIMITED and LESLIE RAYMOND RAWLINGS
Appellants

AND

TIMARU DISTRICT COUNCIL

Respondent

Hearing:	On the papers
Appearances:	T J Jackson and J C Z Loh for Appellants C A O’Connor for Respondent
Judgment:	10 November 2020

JUDGMENT OF DUNNINGHAM J RE: COSTS

This judgment was delivered by me on 10 November 2020 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 10 November 2020

[1]    This appeal was set down for hearing on 10 September 2020 at 10.00 am. However, by notice dated 4 September 2020, the appellant gave notice of its intention to abandon the appeal. The parties reserved the issue of costs, though indicated they were in discussions over these.

HC TRUSTEES 2010 LIMITED and LESLIE RAYMOND RAWLINGS v TIMARU DISTRICT COUNCIL [2020] NZHC 2965 [10 November 2020]

[2]    On 7 September 2020, Nation J made timetabling directions for the filing of costs memoranda. These required the respondent, if it wished to pursue an application for costs, to file a memorandum by 28 September 2020. Any memorandum in reply was to be filed by the appellant by 12 October 2020, and any reply from the respondent, to be filed by 19 October 2020.

[3]    On 28 September 2020, the respondent filed a memorandum seeking costs calculated on a 2A basis, for three steps in the proceeding. No response was received from the appellant in the timeframe directed.   A reminder was sent to counsel on   15 October 2020. On Monday, 19 October 2020, counsel apologised for not responding earlier and said he was engaging in discussions with the respondent’s counsel and would file a memorandum shortly. On 20 October 2020, counsel for the appellant advised he was seeking instructions from his client and would update the Court once that had been done. A further follow-up email was sent on 3 November 2020 to which the Court has had no response.

[4]    At the time of issue of this costs’ decision, no further response has been received from the appellant, and it is more than four weeks after the appellant’s costs submissions were due. There has been no application for an extension of time, and it is appropriate, in these circumstances, to finalise the issue of costs, in the absence of a response from the appellant.

[5]    As the respondent notes, its rights to costs in relation to an abandoned appeal are preserved by r 20.12(2) of the High Court Rules 2016. Mr O’Connor also submits, there is no reason to depart from the general principle, found in r 14.2(1)(a) of the High Court Rules, that costs should follow the event of an unsuccessful application, which this appeal is.

[6]    The respondent seeks the following costs on a 2A basis, calculated in accordance with the relevant schedules to the High Court Rules:

Item	Activity	Day or Part Day	Amount
53	Response to appeal	0.3	717.00
11	Case management – filing of memorandum	0.2	478.00
11	Case management – filing of costs memorandum	0.2	478.00
Total	$1,673.00

[7]The respondent does not seek any disbursements from the appellant.

[8]    I am satisfied that the amount claimed is appropriate and follows logically from the abandonment of the appeal. Accordingly, I order that the appellant pays the respondent $1,673.00 in costs.

Solicitors:

Quentin Hix Legal Ltd, Timaru Gresson Dorman & Co., Timaru