Moir Farms (Maimai) Limited v Department of Conservation HC Greymouth Cri-2011-418-000002

[2011] NZHC 1407

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-418-000002

MOIR FARMS (MAIMAI) LIMITED

Appellant

v

DEPARTMENT OF CONSERVATION

Respondent

Appearances: C S Withnall QC for Appellant

C J Boshier for Respondent

Judgment:      13 October 2011

JUDGMENT OF CHISHOLM J AS TO COSTS

[1]      Leave was reserved in the judgment delivered on 24 August 2011 for costs to be sought.   The appellant seeks costs in the sum of $3600.   That application is opposed by the respondent.

[2]      The application is made pursuant to s 8 of the Costs in Criminal Cases Act

1967 which relevantly provides:

8        Costs on appeals

(1)       Where any appeal is made pursuant to any provision of the Summary Proceedings Act  1957  or  the  Crimes Act  1961  the  Court  which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

(2)       No defendant or convicted defendant shall be granted costs under this  section by reason  only of  the fact that his  appeal has been successful.

MOIR FARMS (MAIMAI) LIMITED V DEPARTMENT OF CONSERVATION HC GRY CRI-2011-418-

000002 13 October 2011

(3)       No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.

...

(6)       If the Court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.

The appellant contends that there should be an above scale award of costs in terms of this section because the appeal involved difficult and important questions of law and a significant penalty.

[3]      Costs are opposed by the respondent on the basis that there are no grounds upon which they could be properly awarded.  It is denied that the appeal involved difficult or important questions that would justify an award for costs.   It is also contended that even if costs were to be awarded there is no basis on which an award above scale could be properly made.

[4]      As the appellant properly recognises there is no presumption for or against the granting of costs and costs are not to be granted merely because the appeal has succeeded.   An application for costs must show good  grounds why the Court’s discretion should be invoked in the applicant’s favour: R v Leitch.[1]While I accept that this appeal involved issues that were not entirely straight forward, particularly in relation to the unsuccessful conviction appeal, I do not accept that the issues were such that an award of costs is justified.

[1] R v Leitch CA 195/97 22 December 1997

[5]      The application for costs is declined.

Solicitors:

Corcoran French, P O Box 13-001, Christchurch

Raymond Donnelly, P O Box 533, Christchurch