Kidd v Equity Realty (1995) Ltd - [2008] NZCA 545

IN THE COURT OF APPEAL OF NEW ZEALAND
CA648/2008
[2008] NZCA 545
BETWEENANTHONY JAMES KIDD

Appellant

ANDEQUITY REALTY (1995) LIMITED

First Respondent
ANDPHILLIP PURNELL ANDREWS

Second Respondent

Hearing:2 December 2008

Court:Chambers, Ellen France and Baragwanath JJ
Counsel:C T Patterson for Appellant

R J Katz QC for Respondents

Judgment:10 December 2008 at 4 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted on the following questions of law:
(a)Was the Employment Court right to join the appellant as a party?
(b)Did the Employment Court properly exercise its discretion in relation to the quantum of costs it ordered the appellant to pay?

B Costs are reserved.
REASONS OF THE COURT
(Given by Chambers J)
[1] We have granted leave to appeal on two of the questions of law Anthony Kidd seeks to argue in this court. We intend the first question to cover the sub-questions to which Mr Patterson, for Mr Kidd, referred, namely:
(a)Whether the Employment Court had power to join Mr Kidd solely for costs purposes;
(b)Whether it had power to join him with retrospective effect; and
(c)Whether, if it did have such power, it properly exercised that power.

[2]       We have not granted leave with respect to the Employment Court’s decision to join Equity Realty (1995) Limited, the first respondent, as a party. That decision seems to us unquestionably right.
[3]       Mr Katz QC, for Equity and Phillip Andrews, the second respondent, submitted that, if we decided to grant leave, a condition of such leave should be that Mr Kidd pay into court the sum the Employment Court held he was liable to pay by way of costs. We decline to make such an order. Mr Kidd will have to pay security for costs with respect to this appeal in the normal way. There is nothing to prevent Equity and Mr Andrews from seeking to enforce the Employment Court’s costs orders in their favour. No stay is in place.
[4]       Mr Katz raised with us whether Mr Kidd should have paid security for costs on his application for leave. He drew our attention to reg 69 of the Employment Court Regulations 2000. That regulation provides:
Security for costs
(1)This regulation applies in any case where a party to any proceedings that have been decided by the Court (not being proceedings in respect of an offence) applies, in accordance with section 214 of the Act, for leave to appeal against the decision of the Court.
(2)In any such case, rule 11 of the Court of Appeal (Civil) Rules 1997 applies, with all necessary modifications, in relation to the application for leave to appeal as if it were an appeal.

[5] At the time those regulations were made, the Court of Appeal (Civil) Rules 1997 were in force. Those rules, unlike their successor rules, the Court of Appeal (Civil) Rules 2005, did not expressly set out a procedure for the handling of applications for leave to appeal and applications for special leave to appeal. That is because, more often…

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 [2008] NZCA 545
Case: [2008] NZCA 545
Decision Date: 10 December 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal in the case of Anthony James Kidd, the appellant, against Equity Realty (1995) Limited and Phillip Purnell Andrews, the respondents. The appeal concerned the Employment Court's decision to join Kidd as a party and the quantum of costs it ordered him to pay. The central issues before the Court of Appeal were whether the Employment Court had the authority to join Kidd as a party solely for costs purposes and whether it properly exercised its discretion regarding the quantum of costs. The Court declined to grant leave to appeal on the issue of joining Equity Realty (1995) Limited as a party, as they found that decision to be correct.

The Court of Appeal focused on the legal authority for the Employment Court to join Kidd as a party and whether this was done correctly. They found that the Employment Court had the power to join Kidd with retrospective effect and that it properly exercised this power. The Court also addressed the regulation concerning security for costs in employment appeals, finding that it was no longer applicable due to changes in the procedural rules. The Court of Appeal decided that Kidd is not out of time to pay security for costs and directed the registrar to consider revoking the regulation.

The Court of Appeal granted leave to appeal on two questions of law, addressing the authority and discretion of the Employment Court in joining Kidd as a party and ordering costs. They found that the Employment Court had the power to join Kidd with retrospective effect and that it exercised this power correctly. The Court also determined that the regulation concerning security for costs in employment appeals was no longer applicable, and directed the registrar to consider revoking it. This decision clarified the legal framework for joining parties and ordering costs in employment appeals and the application of security for costs regulations.

Orders