NJG Holdings Limited v Oliphant

[2007] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND

CA2/07 [2007] NZCA 369

BETWEEN  NJG HOLDINGS LIMITED Appellant

AND  DAVID JAMES OLIPHANT & ANOR First Respondents

AND  ANTONY GEORGE LEWIS MCELWEE Second Respondent

Hearing:         28 August 2007

Court:            Robertson, Wild and Fogarty JJ Counsel:      G J Thwaite for Appellant

T J G Allan and T J P Bowler for First Respondents

No appearance for Second Respondent

Judgment:      28 August 2007

JUDGMENT OF THE COURT

A        The appeal is dismissed.

B        Costs are reserved.

REASONS OF THE COURT

(Given by Robertson J)

[1]      This was an appeal against a refusal by Allan J to grant the appellant relief against  forfeiture in respect  of a hotel at  Huntly which was owned  by the  first

respondent and in which he was lessee.

NJG HOLDINGS LIMITED V DAVID JAMES OLIPHANT & ANOR AND ANOR CA CA2/07  28 August

2007

[2]      In  written  submissions,  Mr  Thwaite  sought  an  order  that  the  matter  be remitted back to the High Court.

[3]      Having heard Mr Thwaite outline his case for 15 minutes, and after dialogue with the Bench and a brief adjournment, counsel indicated he had instructions to withdraw the appeal.  There was no opposition and the appeal was dismissed.

[4]      It was apparent that the issues which were of concern to the appellant were not going to be remedied by an appeal before this Court.

[5]      Mr Allan sought costs.  It was accepted that he was entitled to an award.

[6]      The question arose as to the nature of those costs.  The first respondent may file a Memorandum within ten days setting out a claim for costs other than those normally awarded.  If such a memorandum is filed, then Mr Thwaites has a similar period to respond.  Thereafter the Court will make a decision of quantum.

[7]      In the absence of a Memorandum, the first respondent will have costs of

$3,000 together with usual disbursements.

Solicitors:

Grove Darlow, Auckland, for First Respondents