Napier Tool & Die Limited v Oraka Technologies Limited

[2017] NZCA 119

IN THE COURT OF APPEAL OF NEW ZEALAND

CA304/2016
[2017] NZCA 119

BETWEEN	NAPIER TOOL & DIE LIMITED First Appellant
AND	ORAKA TECHNOLOGIES LIMITED First Respondent
ORAKA GRADERS LIMITED Second Respondent
MICHAEL WILLIAM SCHWARZ Third Respondent

CA309/2016
BETWEEN	NAPIER TOOL & DIE LIMITED First Appellant
GEOSTEL VISION LIMITED Second Appellant
PAUL DAYNES AND GORDON ROBERTSON Third Appellants
AND	ORAKA TECHNOLOGIES LIMITED First Respondent
ORAKA GRADERS LIMITED Second Respondent
MICHAEL WILLIAM SCHWARZ Third Respondent

Court:

Kós P, Harrison and French JJ

Counsel:

P G Skelton QC for First Appellant
K T Glover for Second and Third Appellants
B P Henry for Respondents

Judgment:

(On the papers)

11 April 2017 at 10.30 am

JUDGMENT OF THE COURT

AThe respondents are ordered to pay the first appellant costs and disbursements totalling $20,741.30.

BThe respondents are ordered to pay one set of costs and disbursements totalling $19,734.39 to the second and third appellants.

CNo further order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. In a judgment delivered on 28 November 2016, we allowed this appeal and ordered the unsuccessful respondents to pay each of the two represented groups of appellants costs for a standard appeal on a band A basis together with usual disbursements.[1]

   [1]Napier Tool & Die Ltd v Oraka Technologies Ltd [2016] NZCA 554 at [81].

2. The amount of the costs has since been agreed except for costs claimed in respect of certain memoranda prepared by the appellants.  The memoranda in question fall outside sch 2 of the Court of Appeal (Civil) Rules 2005 and, in the absence of agreement, we are accordingly required to adjudicate the matter.

3. The first category of disputed costs concerns memoranda prepared by the appellants opposing the respondents’ application for entry on the fast track.  The respondents’ application was declined by Harrison J in a minute issued on 19 July 2016.[2]  Despite this, Mr Henry for the respondents objects to any costs being awarded because he says the application was later granted after an urgent inquiry made by the respondents.

   [2]Napier Tool & Die Ltd v Oraka Technologies Ltd CA304/2016, 19 July 2016.

4. There is, however, no record on file of an order directing the matter to be entered on the fast track, and we are unaware of any such order having been made by a Judge of this Court.  The file shows simply that the Court’s Fixtures Manager advised the parties in August 2016 that she had been directed to set the appeal down as soon as convenient for a one day hearing before a Permanent Court and that the Court had space for scheduling in late September 2016 through November 2016.

5. The appellants having successfully opposed the respondent’s application for entry on the fast track, they are entitled to costs in the sum of $669 for the relevant memoranda dated 10 and 13 July 2016. 

6. The second category of costs in dispute concerns memoranda prepared in response to a memorandum filed pre-hearing by Mr Henry objecting to counsel appearing for the second and third appellants.  The issue was not pursued at the hearing.

7. Mr Henry submits no costs should be awarded on the ground that the appellants did not need to file memoranda.  All he was doing was giving advance notice that the issue would be raised at the commencement of the hearing.

8. We do not accept that argument.  The appellants had already filed their submissions before the issue was raised and it was reasonable for them to file written memoranda in response stating their position.  Mr Henry should not have raised the issue in the first place.  It lacked merit.

9. The appellants are entitled to costs calculated in the sum of $892 in respect of this second category of memoranda dated 10 July and 29 September 2016.

10. On that basis, and taking into account the costs calculations that have been agreed, the total of the costs and disbursements owing by the respondents is as follows:

    (a)$20,741.30 to the first appellant.

    (b)$19,734.39 to the second and third appellants.

Result

1. The respondents are ordered to pay the first appellant costs and disbursements totalling $20,741.30.

2. The respondents are ordered to pay one set of costs and disbursements totalling $19,734.39 to the second and third appellants.

3. Costs were not sought in relation to the present dispute and accordingly no award is made.

Solicitors:
Hudson Gavin Martin, Auckland for First Appellant
Malloy Goodwin Harford, Auckland for Second and Third Appellants
Le Pine & Co, Putaruru for Respondent