Murray v Morel & Co Limited

[2008] NZCA 124

IN THE COURT OF APPEAL OF NEW ZEALAND

CA86/04
[2008] NZCA 124

BETWEENPETER JAMES MURRAY

First Appellant

ANDPETER JOHN LORIMER

Second Appellant

ANDDALE WILLIAMS RILEY

Third Appellant

ANDLEADMAN INVESTMENTS LIMITED

Fourth Appellant

ANDMOUNT AUCKLAND FOREST 1 LIMITED

Fifth Appellant

ANDJAMES ALEXANDER DOUGLAS

Sixth Appellant

ANDAVALON MANAGEMENT LIMITED

Seventh Appellant

ANDALAN REVELL AND MARGARET REVELL

Eighth Appellant

ANDMOREL & CO LIMITED

First Respondent

ANDJENNIFER ANN MOREL

Second Respondent

ANDTRUSTEES EXECUTORS LIMITED

Third Respondent

Court:William Young  P, Hammond and Chambers JJ

Counsel:B O'Callahan for Appellants

P R Jagose for First and Second Respondents
L J Taylor for Third Respondent

Judgment:12 May 2008 at 10 am

JUDGMENT OF THE COURT

AThe appellants must pay to the first and second respondents costs in this court in the sum of $10,000, plus usual disbursements.  We certify for second counsel.

BThe appellants must pay to the third respondent costs in this court in the sum of $10,000, plus disbursements of $180.

C        The liability of the appellants under orders A and B is joint and several.

REASONS OF THE COURT

(Given by Chambers J)

[1] The appellants were largely successful on their appeal to this court (now reported at [2006] 2 NZLR 366). This court quashed the High Court costs order and awarded costs to the appellants: at [85]‑[86].

[2]       This court’s decision was, however, substantially reversed by the Supreme Court: Murray v Morel & Co Ltd [2007] 3 NZLR 721. That court awarded costs to all the present respondents. It also vacated our costs orders and ordered that, unless agreed, “costs below [were] to be fixed by the respective Courts in light of the outcome in this Court”: at [92].

[3]       Trustees Executors Limited, the third respondent, has sought costs in this court of $10,000, plus disbursements of $180.  The appellants consent to a costs order in that amount.  We agree that is appropriate. 

[4]       Morel & Co Limited, the first respondent, and Jennifer Morel, the second respondent, have similarly sought costs in the sum of $10,000.  Mr Callahan, for the appellants, has opposed costs in the Morels’ favour on the basis that “one cause of action survives” against them.  We reject that submission.  The Supreme Court considered the appellants should pay costs to the Morels.  Given that we have been ordered to fix costs “in light of the outcome in [the Supreme] Court”, we consider they should similarly get costs in our court.  Certainly, had the Morels enjoyed in this court the success which they enjoyed in the Supreme Court, we would have had no hesitation in awarding them costs, as they would have been effectively completely successful in this court.  The Morels always recognised that the sixth cause of action (the only one to survive) was in a different category from the others, as it was a claim in equity, to which there is no statutory time bar.  The argument was always about the viability of the other causes of action. 

[5]       Accordingly, we consider the Morels should also receive costs of $10,000, plus usual disbursements.  (We do not know what disbursements they incurred.)  We also certify for second counsel. 

Solicitors:
Carter & Partners, Auckland, for Appellant
Chapman Tripp, Wellington, for First and Second Respondents
Minter Ellison Rudd Watts, Wellington, for Third Respondent