Lighting Plus Limited v Massive NV Ca215/02

[2003] NZCA 344

IN THE COURT OF APPEAL OF NEW ZEALAND

CA215/02

BETWEEN

LIGHTING PLUS LIMITED

First Appellant

AND

LFA (NZ) LIMITED

Second Appellant

AND

MASSIVE NV

Respondent

Coram: Keith J
Blanchard J
Tipping J

Appearances:   B P Henry for Appellants

K A Muir for Respondent

Judgment (On the papers): 18 August 2003

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JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
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[1]  The appeal has been discontinued and is dismissed. The respondent seeks costs on the basis that the discontinuance came very late and without prior warning that the appeal might not continue. The respondent had just over a weeks notice prior to the hearing that the appeal would not be proceeding. It has provided evidence that it has incurred substantial costs and disbursements in connection with preparation for the hearing.

[2]  In response the appellant has said that there was no indication that the respondent was working on the appeal until after it was signalled that it would be withdrawn and that because of clarification of the law in a foreign jurisdiction there was good reason to withdraw the appeal.

[3]  In our view it must have been obvious to the appellant that so close to the hearing date the respondent would have been devoting time and effort to the preparation of submissions and otherwise readying itself for the hearing in this Court. The appellant might have been able to avoid this expense for the respondent if it had given an earlier indication that the appeal was not to go forward.

[4]  In the circumstances an award of costs against the appellant in the sum of $3,000 is made.

Solicitors:

Kathryn Webber, Auckland for Appellant

Morgan Coakle, Auckland for Respondent