Lee v District Court at Auckland

[2016] NZCA 42

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/2015
[2016] NZCA 42

BETWEEN

YOON LEE
Appellant

AND

DISTRICT COURT AT AUCKLAND
First Respondent

ZHI HONG GAO AND LIN GE
Second Respondents

JOHN CARTER AND BRENT O’CALLAGHAN
Third Respondents

THE OFFICIAL ASSIGNEE
Fourth Respondent

Court:

Winkelmann, Dobson and Gilbert JJ

Counsel:

Appellant in person
No appearance for First Respondent (abiding)
G J Luen and M N Battersby for Second Respondents
K J M Robinson for Third Respondents
No appearance for Fourth Respondent

Judgment:

(On the papers)

30 June 2016 at 3.30 pm

JUDGMENT OF THE COURT

AThe appellant must pay the second respondents costs on an indemnity basis of $8,050.00 plus disbursements and GST;

BThe appellant must pay the third respondents costs on an indemnity basis of $7,907.50 plus disbursements;

CRelease of the security for costs on appeal is ordered and the Court is to pay $5,800.00 to each of the second and third respondents.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

1. The Court’s judgment dismissing this appeal ordered the appellant to pay the second and third respondents costs on an indemnity basis, subject to the Court’s approval of the quantum of those costs.[1]

   [1]Lee v District Court at Auckland [2015] NZCA 498 at [27].

2. Memoranda have been received seeking approval for costs:

   ·     on behalf of the second respondents dated 3 and 18 November 2015, seeking fees of $10,892, disbursements of $71, and GST on those amounts of $1,644.45, making a total of $12,607.45; and

   ·     on behalf of the third respondents dated 29 October 2015, seeking fees of $7,907.50 and disbursements of $161.32, making a total of $8,068.82.

3. The appellant filed a memorandum dated 17 November 2015 opposing indemnity costs.

4. Given the commonality of interests between the second and third respondents, and the extent to which the issues raised on the appeal had been argued previously, the Court is not prepared to approve more than a maximum of 23 hours at $350 per hour as reasonable fees. 

5. Costs sought on an indemnity basis for the third respondents are within that limit, and are accordingly approved in total together with the disbursements claimed.  Those for the second respondents exceed the reasonable amount, and they are accordingly limited to a fee of $8,050, together with disbursements and GST.

6. We note the appellant’s challenge to the second respondents’ inclusion of GST, but accept the approach described in the supplementary memorandum filed on their behalf.  As the second respondents are not registered for GST, they would not be able to recover a GST input credit.  Accordingly, they are entitled to be reimbursed for the GST incurred as a component of the indemnity costs award.[2]

   [2]New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282 at [13]. The regrettable delay in issuing this judgment is in part due to the Court’s concern to ensure that its decision accorded with the approach taken in that case.

7. Both the second and third respondents have sought release of the security for costs on appeal.  That is appropriate and we direct that the Court is to pay $5,800 to each of the second and third respondents. 

Solicitors:
Hesketh Henry, Auckland for Second Respondents
McElroys, Auckland for Third Respondents