Mission Bay Pharmacy Limited v Drive Holdings Limited

[2006] NZCA 222

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/05

BETWEENMISSION BAY PHARMACY LIMITED

Appellant

ANDDRIVE HOLDINGS LIMITED

Respondent

Hearing:7 August 2006

Court:William Young  P, Robertson and Arnold JJ

Counsel:G J Thwaite for Appellant

M Gilbert for Respondent

Judgment:23 August 2006 at 11am 

JUDGMENT OF THE COURT

COSTS IN FAVOUR OF THE RESPONDENT IN THE SUM OF $600.75 INCLUDING GST.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       In May 2005 in the High Court at Auckland Cooper J held, on an application for summary judgment, that Mission Bay was to deliver up immediately vacant possession of premises owned by Drive Holdings Limited.

[2]       On 13 March 2006 an appeal was heard in this Court against that decision.

[3]       On 15 May 2006 Mission Bay filed an application for stay of execution of the High Court judgment and related relief.  This was listed for hearing in the Miscellaneous Motions list on Monday 7 August 2006.

[4]       On 29 June 2006 the appeal against the grant of summary judgment was dismissed.

[5]       On 2 August 2006, the Court was advised by Mr Thwaites that the application for a stay was to be withdrawn.  Leave was granted.

[6]       Counsel for the respondent by Memorandum sought costs.

[7]       Mr Gilbert noted that the appellant had already applied unsuccessfully to the High Court for a stay of execution of the High Court judgment pending an appeal to the Court of Appeal.

[8]       In terms of s 11.01(b) of the lease between the parties, the respondent sought indemnity costs quantified as $600.75 including GST for responding to the stay application in this Court.

[9]       Counsel noted that this Court, when dismissing the substantive appeal, allowed indemnity costs.

[10]     Counsel for the appellant, having been informed of the respondent’s application for costs, advised that the appellant did not wish to be heard on the matter.

[11]     Nothing available to us suggests that the same approach to costs should not apply in respect of this application as applied on the substantive appeal.

[12]     There will be an order for costs in favour of the respondent in the sum of $600.75 including GST.

Solicitors:
G J Thwaite, Auckland, for Appellant
Gilbert Walker, Auckland, for Respondent