Moore v McNabb

[2006] NZCA 82

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/04

BETWEENBRIDGET MARY MOORE

Appellant

ANDIAN MARTYN MCNABB

Respondent

Court:Anderson  P, Hammond and William Young JJ

Counsel:M I Sewell for Appellant

W J Palmer for Respondent

Judgment (On the papers):     8 May 2006 

JUDGMENT OF THE COURT (NO. 2) (COSTS)

The respondent will have costs of $1,500 and the usual disbursements, for one counsel, on the leave application.

REASONS

(Given by Hammond J)

[1]       In October 2004 Ms Moore applied for leave to appeal out of time from a judgment delivered in the High Court at Christchurch.  The underlying case related to a property dispute between former de facto partners.

[2]       This Court as presently constituted granted leave, but in so doing said:

[12]     In those circumstances we propose to allow the appeal to proceed despite it being out of time.  We reserve costs given the appellant’s legal aid status.  We make it clear however, that she has received an indulgence.  The respondent was entitled to resist this closely balanced application and has incurred costs as a result.  When this case is finally resolved, the appellant, one way or another, will be required to meet the costs of today’s hearing … in the meantime costs are reserved.

[3]        The merits of the appeal came on for hearing before a panel comprising Hammond, O’Regan and Robertson JJ in September 2005.  By a judgment delivered on 22 September 2005, Ms Moore succeeded in gaining an increased award from that which had been ordered in the High Court.  But for the reasons set out in that judgment, no costs were awarded in the High Court, or in the Court of Appeal.

[4]        Mr Palmer now applies, on Mr McNabb’s behalf, for costs under the leave reserved, in the leave application.  Counsel have filed written submissions and the application can be satisfactorily dealt with on the papers.

[5]        In the particular circumstances we allow Mr McNabb costs of $1,500 on the leave application.  In accordance with the usual principle, we do not allow GST.  Mr McNabb will have the usual disbursements.  However we certify for only one counsel.

[6]        As to the accounting matters raised between counsel, it is inappropriate that the Court should comment further on them.  There was no application to recall the merit judgment (which in any event appears plain on its face), and the judgment must speak for itself.

Solicitors:
Armagh Law, Christchurch for Appellant