Kumar v Lucina Investments Limited

[2005] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND

CA160/05

BETWEENRICHARD KUMAR

Appellant

ANDLUCINA INVESTMENTS LIMITED

First Respondent

ANDGARY JOHN PROHM AND OTHERS

Second Respondent

ANDGARY PROHM MOTOR SERVICES LIMITED

Third Respondent

Court:Hammond, William Young and Panckhurst JJ

Counsel:D Singh for Appellant

D J Chisholm for First Respondent
N W Woods for Second and Third Respondents

Judgment (On the papers):     24 November 2005 

JUDGMENT OF THE COURT

The application to recall the judgment is dismissed.

REASONS

(Given by William Young J)

[1]       Mr Kumar seeks a recall of the judgment dismissing his application for leave to appeal.  The basis of the application is that this Court may have overlooked the awards of costs made in the High Court against Mr Kumar in favour of Lucina and the Prohms.

[2]       We are dealing with the application on the papers pursuant to r 51(6) of the Court of Appeal (Civil) Rules 2005.

[3]       In the present context, the award of costs in favour of the Prohms is irrelevant; this because we were not able to detect a tenable basis for challenging the decision of the Judge on liability in relation to the Prohms.  Accordingly we will confine our discussion of the issue raised by counsel for Mr Kumar to the order for costs in favour of Lucina.

[4]        At the hearing of the application for leave to appeal counsel for Mr Kumar did not suggest that leave to appeal ought to be granted for the limited purpose of upsetting the order for costs in favour of Lucina.  This was not surprising:

(a)We would be most unlikely to entertain granting an application for leave to appeal out of time where the only purpose would be to challenge an award of costs made in the High Court; and

(b)Lucina had, in any event, prior to trial made a Calderbank offer of $25,000 all in, an offer which was obviously not accepted.  In that context, a finding in this Court in favour of Mr Kumar on liability but without any substantial relief would not warrant this Court upsetting the award of costs made in the High Court in favour of Lucina.

[5]        For the reasons that appear in [4] of this judgment we dismiss the application to recall the judgment.

Solicitors:
Shean Singh, Auckland for Appellant
Kensington Swan, Auckland for First Respondent
Rice Craig, Papakura for Second and Third Respondents