Lewis and Lewis v Mason and Meltzer as Liquidators of Global Print Strategies Limited (in liq)
[2009] NZCA 449
•30 September 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA676/2008
[2009] NZCA 449BETWEENCONWAY LEWIS
First AppellantANDJOHANNA LEWIS
Second Appellant
ANDKAREN BETTY MASON AND JEFFREY PHILIP MELTZER AS LIQUIDATORS OF GLOBAL PRINT STRATEGIES LIMITED (IN LIQUIDATION)
Respondents
Hearing:6 May 2009
Court:Chambers, O'Regan and Ellen France JJ
Counsel:P J Davey for Appellants
B P Keene QC and C A Murphy for Respondents
Judgment:30 September 2009 at 2.30 pm
JUDGMENT OF THE COURT
We make no order for costs.
REASONS OF THE COURT
(Given by O’Regan J)
[1] In our substantive judgment in relation to this appeal ([2009] NZCA 306 at [116]), we reserved costs. We indicated that we would receive submissions and then deal with costs on the papers unless either party asked for a hearing. We now have those submissions and neither party has asked us to hold a hearing.
[2] Both parties seek costs. The appellants base their claim on the general principle in r 53A of the Court of Appeal (Civil) Rules 2005 (the Civil Rules) that the losing party should pay the successful party’s costs. They seek costs for a standard appeal, on a band A basis.
[3] The respondents base their claim for costs on the fact that they offered to settle on 5 September 2006 for an immediate payment of $560,000 plus costs to that time. That offer was made in a Calderbank letter. It was rejected. They say that if the offer had been accepted, the appeal in this Court could have been avoided.
[4] We see the position as slightly more complex than either party contends for. In relation to the appellants’ position, we accept that they were successful on the appeal, but that success related to only one issue, which was the question of as to whether the liability of the appellants was capped at $560,000 by the judgment of this Court in the first appeal ([2006] 3 NZLR 225). All of the other arguments pursued on the part of the appellants failed.
[5] In respect of the respondents’ position, the Calderbank letter was, given our finding as to the liability cap from the first judgment of this Court, effectively an offer to settle for the full amount of their claim plus costs. When it was turned down, the respondent argued (successfully in the High Court) that the $560,000 figure set by this Court was not a cap, and that it was open to them to claim a greater amount. Ultimately, their strategy of pursuing an amount in excess of $560,000 proved to be unsuccessful in this Court.
[6] We have concluded that the appropriate course in this case is to refuse to order costs in favour of either party. In terms of r 53F of the Civil Rules, the position of the appellants falls within r 53F(d): although the appellants succeeded overall, they failed in relation to every other aspect of the appeal, and the issues in respect of which they failed were the subject of extensive submissions and arguments in this Court. When given the chance to settle the matter after this Court decided that $560,000 was a cap on liability, they declined the opportunity and continued to argue the points on which their arguments were rejected.
[7] In relation to the respondents, the position is analogous to the situations described in r 53F(f). The respondents’ decision to pursue a claim for an amount in excess of $560,000 has led to the significant disputes in both the High Court and this Court and, ultimately, we have found that their claim for an amount of $560,000 fails. Although we do not see their actions as unreasonable (and we acknowledge they succeeded in the High Court), the conduct of the claim overall (including at the first appeal, where the Court was unable to determine quantum because of the nature of the respondents’ pleadings) makes it unfair to require the appellants to meet their costs.
[8] We conclude that costs should lie where they fall.
Solicitors:
Gill, Coutts & Co, Auckland for Appellants
Shieff Angland, Auckland for Respondents
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