Orlov v ANZA Distributing New Zealand Limited (in liq)

[2010] NZCA 536

IN THE COURT OF APPEAL OF NEW ZEALAND

CA683/2009
[2010] NZCA 536

BETWEENEVGENY ORLOV

Appellant

ANDANZA DISTRIBUTING NEW ZEALAND LIMITED (IN LIQUIDATION)

First Respondent

ANDUSG INTERIORS PACIFIC LIMITED

Second Respondent

Hearing:11 August 2010

Court:O'Regan  P, Glazebrook and Stevens JJ

Counsel:E Orlov in person

Respondents excused from appearing

Judgment:22 November 2010 

JUDGMENT OF THE COURT

The appeal is struck out.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

[1]        At issue in this appeal are two judgments of Cooper J.  In the first decision, dated 18 September 2009, the Judge made an award of increased costs in favour of each respondent against both Mr Orlov and his clients, on the basis that they would be jointly and severally liable for them.[1]  In the second decision, dated 20 November 2009, the Judge refused Mr Orlov’s application for a stay of the costs judgment and awarded costs against him on that application.[2] 

[1]ANZA Distributing New Zealand Ltd (In Liq) v USG Interiors Pacific Ltd HC Auckland CIV-2007-404-3474, 18 September 2009.

[2]ANZA Distributing New Zealand Ltd (In Liq) v USG Interiors Pacific Ltd (No2) HC Auckland CIV-2007-404-3474, 20 November 2009.

[1]        On 15 July 2010 the parties filed a joint memorandum advising that they had reached a global settlement of all disputes between them.  They agreed, however, that Mr Orlov is free to pursue the present appeal “for the limited purposes of challenging the correctness in law of the decisions and the High Court’s factual finding that he failed to reach the minimum standard of competence that should be attained by officers of the Court in order to protect his reputation”.  As a term of the settlement, the respondents have agreed that they will not oppose Mr Orlov’s application to set aside the costs judgment and the cross-appeal will be abandoned.  The respondents have also indicated that they do not intend to appear unless an appearance is necessary to protect their position, or the Court requires it.

[2]        On 22 July 2010 Arnold J issued a minute saying:

[4]  Given that the parties have settled their dispute, including in respect of the costs orders, I consider that the appeal has become moot.  In particular, there is no need to set aside the orders made by Cooper J as the settlement encompasses them.  In light of the parties’ settlement, there is no purpose in the Court examining the legal or factual basis for the High Court’s orders and it could not possibly do so after hearing argument from only one party.

[5]  Accordingly, I consider that the appeal should be struck out.  If the parties do not agree, they are to file submissions indicating why.  Mr Orlov is to file and serve his submissions by 1 pm on Friday 30 July 2010.  The respondents are to file any submissions in response by 5 pm on Wednesday 4 August 2010.  The matter will then be placed before the Coram for a decision.

[3]        Mr Orlov filed submissions opposing the appeal being struck out.  On 11 August 2010 the matter came before this Court.  After the hearing, the following minute was issued:

[1]Mr Orlov is to file a one page memorandum setting out clearly the points he wishes to pursue in his appeal.

[2]This memorandum must be filed on or before Thursday 23 September 2010.

[3]As noted at the hearing, despite the appeal being moot, the Court is prepared to consider allowing it to proceed.  Subject to reviewing the memorandum of points on appeal to determine the most appropriate means of hearing, we contemplate that the following conditions would be included:

(a)         Counsel to assist the Court by acting as “contradictor” would be appointed at Mr Orlov’s cost.

(b)         The respondents must be released from any obligations under the settlement agreement which could hinder the ability of counsel assisting the Court to seek information from the respondents or their counsel if he or she needs to do so.

(c)         Mr Chambers would have the right to be heard if his conduct is called into question.

(d)         There would be payment by Mr Orlov of normal Court fees and security for costs.

[4]        Nothing was filed by Mr Orlov before the deadline of 23 September 2010.  A further minute was sent out by the Court on 13 October 2010.  It stated:

[1]In our minute of 11 August 2010, we directed Mr Orlov to file a one page memorandum setting out clearly the points he wished to pursue on his appeal.  We said that this memorandum must be filed on or before Thursday 23 September 2010.

[2]We are advised by the Registry that no such memorandum has been filed by Mr Orlov.  We direct that he remedy this default.  Unless the memorandum is filed by Thursday 21 October 2010, the appeal will be struck out.

[5]        On 14 October 2010 a memorandum was received from Mr Orlov.  The Court issued another minute on 12 November 2010 in the following terms:

[1]We refer to Mr Orlov’s memorandum of 14 October 2010.

[2]The Court has already in its minute of 11 August 2010 set out the conditions under which the proposed appeal might proceed.  We do not see any grounds to modify those conditions.

[3]In particular it is not possible for the Court to hear the appeal without a contradictor.  Mr Orlov is to note, however, that amicus rates would apply to any contradictor.  For Queen’s Counsel the hourly amicus rate is $250 an hour.

[4] Any appeal relating to the costs award itself is moot, given the settlement between the parties.  The only issue is a reputational one.  The appeal thus should be very narrowly focused.

[5]Mr Orlov’s memorandum of 14 October 2010 does not focus on the reputational issues.  Most of the points relate to costs issues, which are moot.

[6]If Mr Orlov still wishes to pursue the appeal, he has until 5pm on Monday 22 November 2010 to file a memorandum on the points of appeal limited to the reputational issues.  That memorandum should also indicate agreement (or otherwise) to the conditions set out in our minute of 11 August 2010.

[7]If no memorandum is filed by that time or Mr Orlov does not agree to the conditions then the appeal will be struck out.

[6]        On 11 November 2010, Mr Orlov filed a memorandum indicating that he did not agree to the conditions and in particular the requirement to pay for a contradictor.

[7]        As Mr Orlov is not able to agree to the conditions set by the Court, the appeal is struck out.

Solicitors:

Equity Law, Auckland for Appellant

Bell Gully, Auckland for First Respondent

Russell McVeagh, Auckland for Second Respondent