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Kidd v Equity Realty (1995) Ltd

Kidd v Equity Realty (1995) Ltd

Case [2010] NZCA 452 5 October 2010

Jurisdiction

Joinder of Parties

Costs

Retrospective Costs Orders

Civil Litigation & Procedure

Employment & Labour Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA95/2009
[2010] NZCA 452
BETWEENANTHONY JAMES KIDD

Appellant

ANDEQUITY REALTY (1995) LIMITED

First Respondent
ANDPHILLIP PURNELL ANDREWS

Second Respondent

Hearing:29 June 2010

Court:William Young P, Chambers and O'Regan JJ
Counsel:C T Patterson and Z J Hill for Appellant

R J Katz QC for Respondents

Judgment:5 October 2010 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed and the cross-appeal is dismissed.
BThe orders for the joinder of Mr Kidd and for the payment by him of costs are set aside.
CMr Kidd is entitled to costs in the Employment Court to be fixed by that Court (but only in relation to the application to join him as a party).
DIn relation to this appeal and the application for leave to appeal, Equity Realty (1995) Limited and Mr Andrews are to pay Mr Kidd costs for a standard application for leave to appeal and a standard appeal on a band A basis and usual disbursements. Their liability is joint and several.
EThere is no order as to costs on the cross-appeal.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
The case
[1]        The background facts to this case are reasonably complex but those that are relevant to the present appeal lie within a comparatively narrow compass and can be shortly stated.
[2]        The appellant, Mr Anthony Kidd, ran Axiom Rolle PRP Valuations Services Ltd (“Axiom”). Axiom sought an Anton Piller order from the Employment Relations Authority in relation to its dispute with Mr Rahul Kapadia. The Authority dismissed the application on the merits but when Axiom challenged this determination in the Employment Court, that Court purported to make an order which permitted specified persons to search the premises of Equity Realty (1995) Ltd[1]. As it turned out these orders were not executed because Equity Realty (and its principal Mr Phillip Andrews) would not facilitate access.
[1]Axiom Rolle PRP Valuations Services Limited v Kapadia [2004] 2 ERNZ 307 (EmpC).
[3]        This led to:
(a)contempt proceedings before the Employment Court by Axiom against Mr Andrews; and
(b)an application by Equity Realty for a discharge of the Anton Piller order.

[4] There were various attempts to settle or perhaps limit the litigation:
(a)In the immediate aftermath of the failed attempt to execute the Anton Piller order, in October 2004, counsel for Axiom apparently indicated that Axiom would not seek to enforce that order and indeed would consent to its discharge but without costs and with a reservation of rights to pursue Mr Andrews for contempt. This proposal was rejected.[2]
(b)In an undated letter in June 2005, the solicitors for Equity Realty and Mr Andrews proposed a settlement in terms of which the Anton Piller order would be set aside, the contempt proceedings would be dismissed and Axiom would pay $38,000 in costs.
(c)This led to a response from Axiom’s solicitors on 15 June 2005 under which the Anton Piller order would be set aside and the contempt proceedings struck out but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kidd v Equity Realty (1995) Ltd

Details

AGLC: Kidd v Equity Realty (1995) Ltd [2010] NZCA 452
Case: [2010] NZCA 452
Decision Date: 5 October 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Anthony James Kidd against the decision of the Employment Court that ordered him to pay costs to Equity Realty (1995) Limited and Phillip Purnell Andrews. The primary issue was whether the Employment Court had the jurisdiction to join Mr Kidd as a party to the proceedings solely for the purpose of making a costs order against him. The court also needed to decide if the Employment Court was correct in making an order for costs against Mr Kidd given the circumstances of the case.

The Court of Appeal held that although the Employment Court had the jurisdiction to join Mr Kidd as a party under section 221 of the Employment Relations Act 2000, the joinder was not appropriate in this case. The court concluded that the reasons provided for making the order for costs against Mr Kidd did not warrant such an order. The court found that the circumstances present in the case, such as Mr Kidd being the guiding mind of Axiom and the company's insolvency, were not sufficient grounds to award costs against him personally. The court further found that there was no evidence of impropriety or that Mr Kidd was acting in his own interests rather than the interests of the company.

The appeal was allowed, and the cross-appeal was dismissed. The orders for the joinder of Mr Kidd and for the payment by him of costs were set aside. Mr Kidd was entitled to costs in the Employment Court in relation to the application to join him as a party. Equity Realty (1995) Limited and Mr Andrews were to pay Mr Kidd costs for the appeal and application for leave to appeal on a band A basis and usual disbursements. There was no order as to costs on the cross-appeal.

Orders