Low Volume Vehicle Technical Association Incorporated v Brett
[2019] NZCA 160
•15 May 2019 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA725/2017 [2019] NZCA 160 |
| BETWEEN | LOW VOLUME VEHICLE TECHNICAL ASSOCIATION INCORPORATED |
| AND | JOHN BERNARD BRETT |
| Court: | Kós P and Clifford J |
Counsel: | R J Gordon for Appellant and Second Respondent |
Judgment: | 15 May 2019 at 3 pm |
JUDGMENT OF THE COURT
The application is declined. No order for costs is made.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
On 26 March 2019 this Court allowed the appeal and dismissed the cross‑appeal.[1] A permanent injunction was granted against Mr Brett, and the case was remitted to the High Court for reconsideration of whether qualified privilege was an available defence against the Association’s claim. As to costs, Mr Brett was required to pay costs on a standard appeal on a band A basis together with usual disbursements.
[1]Low Volume Vehicle Technical Assoc Inc v Brett [2019] NZCA 67.
Mr Brett has now filed an “interlocutory application” to the effect that the award of costs be changed so “that costs lie where they fall”. The grounds offered are two. First, that it cannot be said that the Association was the successful party in the proceedings (or that Mr Brett was unsuccessful). Secondly, that Mr Brett lacks means to pay costs.
Discussion
The Court has delivered its judgment on the appeal. That judgment has been sealed. This is not an interlocutory application, therefore, and the Court has no jurisdiction to consider it. We will instead treat it as an application for recall, for which jurisdiction might lie. But we see no basis on which recall could be obtained on the grounds offered, even if the very limited threshold for recall could be met.
Neither premise for revision of the costs order is sustainable. The Association’s appeal was allowed, a permanent injunction was ordered, and the High Court was directed to reconsider its dismissal of part of the claim on the basis of qualified privilege. Mr Brett’s cross-appeal against Mr Johnson was dismissed. It cannot be said in these circumstances that the Court erred in ordering costs against Mr Brett. Finally, want of means is not a basis on which costs should not be awarded. Even if it were otherwise, that should have been raised at the hearing, and evidence to that effect produced. It was not, and has not been.
Result
The application is declined. No further order for costs is made.
Solicitors:
Minter Ellison Rudd Watts, Wellington for Appellant and Second Respondent
0
1
0