MacLeod and MacLeod v Burke and Burke

[2007] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND

CA266/06
[2007] NZCA 444

BETWEENJOHN ARTHUR MACLEOD AND DAPHNE MARGARET MACLEOD

Appellants

ANDSTEPHEN LEONARD BURKE AND MEGAN ANN BURKE

Respondents

Court:William Young  P, Robertson and Ellen France JJ

Counsel:J A Farrow for Appellants

D J More for Respondents

Judgment

(On the papers):          16 October 2007 at 4 pm

JUDGMENT OF THE COURT

THE RESPONDENTS ARE ENTITLED TO COSTS OF $500.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       On 12 December 2006, the appellants filed a Notice of Appeal in this Court against the decision delivered by John Hansen J on 15 November 2006 on a dispute which centred on s 173 of the Land Transfer Act.

[2]       Security for costs was fixed and paid.

[3]       In May 2007 the appellants’ attention was drawn to the six month time limit and an application was filed for an order extending the time for filing the case and applying for allocation of the hearing date to 12 December 2007.

[4]       A Notice of Opposition was filed.  A fixture was allocated for 17 September 2007 which, by consent, was adjourned until 15 October 2007.

[5]       On 12 September 2007 a Notice of Abandonment of Appeal was filed. 

[6]       On 17 September 2007 counsel for the respondents wrote seeking an order for costs consequent upon the abandonment of the appeal.  Counsel noted that 6.5 hours had been engaged in relation to the proposed appeal.

[7]       The appellant countered by submitting that the application for extension of time was necessary because new information (which could be relevant) had been discovered by a surveyor acting for a third party.  The respondents’ solicitors were aware of the relevance of the information and that further inquiry of Land Information New Zealand was necessary.  Thus it is submitted they should not have opposed the appellants’ application which was to enable essential inquiries to be made.

[8]       When that information was available, the appellants, in a responsible way, abandoned their appeal.

[9]       The appellants contend that the bulk of the costs could have been avoided if the respondents had been reasonable.

[10]     The costs application relates not only to the question of extension, but the filing of the appeal in the first place.

[11]     In the circumstances, bearing in mind awards made in respect of matters in the Miscellaneous Motions list, a proper contribution to the respondents’ costs would be $500 and we order accordingly.

Solicitors:
Webb Farry, Dunedin, for Appellants
Lucas & Lucas, Dunedin, for Respondents