New Zealand Cards Limited v Ramsay

IN THE COURT OF APPEAL OF NEW ZEALAND

CA424/2012
[2014] NZCA 580

BETWEEN	NEW ZEALAND CARDS LIMITED Appellant
AND	COLIN RAMSAY Respondent

Court:

Miller, Heath and Dobson JJ

Counsel:

No appearance for Appellant
S G Wilson for Respondent

Judgment:

(On the papers)

1 December 2014 at 11.30 am

JUDGMENT OF THE COURT

AThe respondent’s application for increased costs is declined.
BThe appellant must pay the respondent’s costs as for a standard appeal on a band A basis.
CThe quantum of the costs is $7,612.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

This appeal had a somewhat protracted history before it was dismissed in the absence of submissions in support of the appeal. The circumstances in which that occurred are explained in our judgment dismissing the appeal, delivered on 23 October 2014.[1] Costs were reserved pending memoranda.
[1]New Zealand Cards Ltd v Ramsay [2014] NZCA 512.
We have subsequently received memoranda, first on behalf of the respondent dated 29 October 2014 seeking increased costs, and a reply on behalf of the appellant from Mr Beresford dated 12 November 2014.
For the respondent, Mr Wilson sought increased costs for pre-hearing steps in responding to the appeal on the basis that the appellant’s conduct, and in particular Mr Beresford’s conduct in failing to comply with directions from the Court, unnecessarily contributed to additional costs incurred on behalf of the respondent. Although the respondent was excused from the formal requirement to file submissions given the non-filing of submissions for the appellant, Mr Wilson has submitted that additional costs were incurred in monitoring Mr Beresford’s numerous contacts with the Registry, undertaking a measure of preparation for hearings that did not proceed in February and July 2014, and in considering earlier unsuccessful interlocutory applications by the appellant in July and August 2012 and January 2013.
Mr Wilson sought an uplift of 75 per cent on costs as for a standard appeal on a band A basis for pre-hearing attendances, the effect of which would be to add $447.75 to the costs entitlement.[2]
[2]Court of Appeal (Civil) Rules 2005, ss 53B and 53C.
Mr Beresford opposed the costs sought on the basis that the claims are excessive, often factually wrong and often spurious. Mr Beresford urged the Court to undertake a further inquiry as to the work actually done on behalf of the respondent by Mr Wilson, and also an inquiry into the failings of counsel and solicitors previously instructed by the appellant. If we were minded to accept Mr Beresford’s criticisms of those acting for him, they would not be relevant to quantification of the successful respondent’s costs entitlement. In any event, we are not inclined to accept that the criticisms Mr Beresford makes of counsels’ conduct had a material bearing on the pre-hearing steps where Mr Wilson claims that additional or unnecessary work was required on behalf of the respondent.
The largest component of the scale costs relates to preparation for hearing of the appeal, where band A for a standard appeal allows for three days at $1,990 per day. That allowance is intended to include the work in settling submissions in final form and filing them with the Court. Mr Wilson has submitted that in preparing for the hearing he had to prepare a draft of submissions in response to the appeal. However, the respondent did not have to file submissions so the level of work ordinarily reflected in that item of scale costs was not required.
We are satisfied that that consideration balances out the larger extent of response required on other pre-hearing aspects. It follows that we do not consider increased costs are justified.
Accordingly, we order costs as for a standard appeal on a band A basis. However, we are not prepared to award the scale costs claimed for the preparation of the costs memorandum, $995, given the application for increased costs is declined. We consider that amount should be halved. The quantum is therefore $7,612: the $8,109.50 specified in appendix 1 to Mr Wilson’s memorandum (which includes the sealing fee for judgment) with a reduction of $497.50.
We add by way of postscript that Mr Beresford has very recently made further unsolicited submissions. We reject them. To the extent he complains about costs, those complaints do not justify departure from scale. To the extent he complains about not being heard when he went to court, unrepresented, on 22 October, we refer to the narrative in our judgment of 23 October 2014.

Solicitors:
Duncan Cotterill, Christchurch for Respondent

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of New Zealand Cards Limited v Ramsay involved the appellant, New Zealand Cards Limited, and the respondent, Colin Ramsay. The dispute arose from a previous appeal that was dismissed in the absence of submissions in support of the appeal. The Court of Appeal subsequently received memoranda on behalf of the respondent seeking increased costs, and a reply on behalf of the appellant. The primary legal issue was whether the respondent was entitled to increased costs for pre-hearing steps in responding to the appeal due to the appellant's conduct, specifically the failure to comply with directions from the Court. The Court of Appeal found that the claims for increased costs were not justified, and ordered costs as for a standard appeal on a band A basis. The quantum of the costs was set at $7,612, which was a reduction of $497.50 from the amount specified in the respondent's memorandum. The Court also rejected any further unsolicited submissions made by the appellant.

The Court of Appeal considered the respondent's argument that additional costs were incurred due to the appellant's conduct, specifically the failure to comply with directions from the Court. The respondent argued that additional costs were incurred in monitoring the appellant's contacts with the Registry, preparing for hearings that did not proceed, and considering unsuccessful interlocutory applications by the appellant. However, the Court of Appeal found that the additional work required on behalf of the respondent was balanced out by the lesser extent of work ordinarily reflected in the scale costs for preparation for hearing of the appeal. The Court of Appeal also rejected the appellant's criticisms of counsels' conduct, finding that they did not have a material bearing on the pre-hearing steps where additional work was required on behalf of the respondent.

The Court of Appeal's reasoning was based on the fact that the respondent did not have to file submissions, and therefore the level of work ordinarily reflected in the scale costs for preparation for hearing of the appeal was not required. The Court of Appeal also found that the claims for increased costs were excessive, often factually wrong, and often spurious. The Court of Appeal ordered costs as for a standard appeal on a band A basis, but reduced the amount claimed for the preparation of the costs memorandum. The Court of Appeal rejected any further unsolicited submissions made by the appellant, finding that they did not justify departure from scale or warrant a departure from the Court's previous judgment.

The final orders of the Court of Appeal were that the respondent's application for increased costs was declined, and the appellant must pay the respondent's costs as for a standard appeal on a band A basis. The quantum of the costs was set at $7,612, which was a reduction of $497.50 from the amount specified in the respondent's memorandum. The Court of Appeal also rejected any further unsolicited submissions made by the appellant. The costs were to be paid by the appellant to the respondent within 14 days of the date of the judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established