Infinity Enterprises NZ Limited v Kinara Trustee Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA342/2019
[2020] NZCA 347

BETWEEN	INFINITY ENTERPRISES NZ LIMITED Appellant
AND	KINARA TRUSTEE LIMITED Respondent

Court:	Cooper, Clifford and Stevens JJ
Counsel:	C L Bryant and A C Eager for Appellant A R B Barker QC and L R Green for Respondent
Judgment: (On the papers)	13 August 2020 at 10 am

JUDGMENT OF THE COURT
(Costs)

The respondent is to pay the appellant costs of $25,095 and disbursements of $5,434.62 in accordance with the joint memorandum of counsel dated 4 August 2020.

____________________________________________________________________

REASONS OF THE COURT

In a judgment dated 27 July 2020, we allowed this appeal and dismissed the cross‑appeal, reserving the question of costs pending further submissions from the parties.[1]
[1]Infinity Enterprises NZ Ltd v Kinara Trustee Ltd [2020] NZCA 309.
The parties have since filed a joint memorandum advising the Court that costs are agreed. Thus, no further submissions are necessary.
We order the respondent to pay the appellant costs and disbursements in accordance with the schedule below, taken from the joint memorandum of counsel dated 4 August 2020.

Steps taken by appellant and applicable time allocation item (schedule 2, band A)	Allowance	Value
Commencement of appeal (Item 14(a))	1.5 x $2,390	3,585
Commencement of application (directions on cross‑appeal) (Item 8)	0.5 x $2,390	1,195
Preparation of case on appeal (Item 15)	1.0 x $2,390	2,390
Preparation for hearing of appeal (submissions, authorities) (Item 17)	3.0 x $2,390	7,170
Preparation for hearing of cross-appeal (notice to support judgment on other grounds, submissions, authorities) (Item 17)	3.0 x $2,390	7,170
Appearance at hearing of appeal (Item 18)	1.0 x $2,390	2,390
Second counsel (Item 18)	0.5 x $2,390	1,195
Total costs on scale		25,095.00
Disbursements (all ex GST)
Filing fee		956.52
Setting down fee		2,347.83
Couriers		363.94
Counsel’s flights, accommodation and taxis		1,170.33
LINZ searches (case on appeal)		56.00
Total disbursements		5,434.62
Costs		25,095.00
Disbursements		5,434.62
Total (ex GST)		30,529.62

Solicitors:
Hesketh Henry, Auckland for Appellant
Murdoch Price, Manukau for Respondent

CaseChat Overview and Summary

Infinity Enterprises NZ Limited appealed against a decision of the High Court that found in favour of Kinara Trustee Limited. The dispute arose out of a loan agreement between the two parties, where the appellant claimed that the respondent had breached the terms of the agreement. The Court of Appeal heard the appeal and dismissed the cross-appeal by the respondent. The court reserved the question of costs pending further submissions from the parties.

The legal issues that the Court of Appeal was required to decide were whether the trial judge had erred in finding that the appellant had not established a case for relief on the basis of unconscionability, and whether the trial judge had erred in finding that the appellant had not established a case for relief on the basis of breach of the implied term of good faith. The Court of Appeal found that the trial judge had erred in finding that the appellant had not established a case for relief on the basis of unconscionability.

The Court of Appeal held that the trial judge had erred in finding that the appellant had not established a case for relief on the basis of unconscionability. The Court of Appeal found that the trial judge had failed to consider all of the relevant circumstances of the case, and had placed too much reliance on the formal terms of the loan agreement. The Court of Appeal held that the appellant had established a case for relief on the basis of unconscionability, and that the respondent was liable to pay the appellant's costs of the appeal and cross-appeal.

The Court of Appeal ordered the respondent to pay the appellant's costs of $25,095 and disbursements of $5,434.62 in accordance with the joint memorandum of counsel dated 4 August 2020. The costs were calculated based on the time taken by the appellant's counsel to prepare the case and appear at the hearing of the appeal and cross-appeal. The disbursements included the filing fee, setting down fee, couriers, counsel’s flights, accommodation and taxis, and LINZ searches.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established