NJG Holdings Limited v Oliphant

The matter before the Court of Appeal of New Zealand was an appeal by NJG Holdings Limited against a decision of Allan J. The appeal concerned a refusal by Allan J to grant relief against forfeiture in respect of a hotel located in Huntly, which was owned by the first respondent, David James Oliphant, who was also the lessee of the hotel. The second respondent, Antony George Lewis McElwee, had no representation in the appeal. The appeal was heard by Robertson, Wild, and Fogarty JJ on 28 August 2007. The appellant was represented by G J Thwaite, while the first respondents were represented by T J G Allan and T J P Bowler.

The central legal issue before the Court was whether the appeal against the refusal to grant relief against forfeiture should be upheld. The appellant sought an order that the matter be remitted back to the High Court. After hearing the appellant’s submissions and engaging in dialogue with the bench, counsel for the appellant indicated that the appeal was to be withdrawn due to instructions received. The Court accepted the withdrawal and dismissed the appeal. It was apparent that the issues of concern to the appellant would not be remedied by the appeal before the Court of Appeal.

In light of the dismissal of the appeal, the Court turned to the issue of costs. The first respondents sought an award of costs, which was accepted as appropriate. The Court noted that the nature and quantum of the costs would be determined after the first respondent had the opportunity to file a memorandum setting out a claim for costs other than those normally awarded. If such a memorandum was filed, the appellant would have an opportunity to respond, after which the Court would make a decision on the quantum of costs. In the absence of such a memorandum, the first respondents were to have costs of $3,000 together with the usual disbursements.

The final orders of the Court were that the appeal was dismissed and that costs were reserved for a later determination.