McCready v Whitireia Independent Students' Assocation Inc

[2011] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

CA824/2010
[2011] NZCA 33

BETWEEN  GRAHAM EDWARD MCCREADY
Appellant

AND  WHITIREIA INDEPENDENT STUDENTS' ASSOCATION INCORPORATED
First Respondent

AND  WHITIREIA COMMUNITY POLYTECHNIC
Second Respondent

Counsel:         Appellant in person
J S Sumner for Second Respondent

Judgment:      23 February 2011 at 2.30 pm

(on the papers)

JUDGMENT OF ARNOLD J

The applicant must pay the second respondent costs in the amount of $400.

REASONS

1. On 6 December 2010, Mr McCready filed an application for an extension of time to appeal against a decision of Miller J in McCready v Whitireia Independent Students’ Association Inc.[1]  As the application was opposed by the first and second respondents, it was allocated a hearing date of 19 April 2011. 

   [1]McCready v Whitireia Independent Students’ Association Inc HC Wellington CIV-2010-485-001576, 11 October 2010.

2. On 11 January 2011, Mr McCready filed a memorandum in which he advised that he did not intend to pursue the appeal and accordingly abandoned his application for an extension of time.  The reason for this was that he was concerned about his standing to pursue the litigation.

3. On 26 January 2011, counsel for the second respondent, Mr Sumner, filed a memorandum seeking an order for costs against Mr McCready.  The amount sought covered costs for preparation of a memorandum of opposition ($376) and costs for preparation for the hearing that had been undertaken prior to the receipt of the notice of abandonment (0.3 – 0.5 of a day). 

4. On 31 January 2011, Mr McCready filed a memorandum opposing any award of costs to the respondents.  He argued that they had unnecessarily opposed the application for an extension of time and their counsel had breached their professional obligations to the Court in various ways.

5. The Registry has referred this matter to me for decision, in exercise of the powers conferred on individual judges of the Court.[2]

   [2]      Court of Appeal (Civil) Rules 2005, r 7(1)(a).

6. In general, costs follow the event.[3]  The abandonment of an appeal does not affect the power of the Court to make an order as to costs.[4]  I see no reason to depart from the general principle in this case.  This is not a case where the delay in filing the notice of appeal was caused by a slip-up or minor error.  Further, Mr McCready appears to have had a change of heart about his capacity to pursue the appeal within a very short time of filing his application for an extension of time.  As to the allegations about the conduct of counsel, they cannot be addressed in the present context.  Accordingly I consider that, in principle, Mr McCready should be ordered to pay costs on the abandonment.

   [3]      , rr 53A(a) and 53GG(1).

   [4]      Ibid, r 44(3).

7. As the first respondent has made no application for costs, I make no order in its favour.  However, in respect of the second respondent, there will be an order for costs in the amount of $400.  This essentially represents the costs of preparing the memorandum opposing leave.  I do not consider that any award should be made in respect of preparation for the hearing allocated for 19 April 2011 given that the notice of abandonment was given on 11 January 2011, reasonably soon after the application was filed and well before the scheduled hearing date.

Solicitors:

Ford Sumner, Wellington for Second Respondent