Otago Station Estates Limited v Parker

[2006] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/05
CA29/06

BETWEENOTAGO STATION ESTATES LIMITED

Appellant

ANDJOHN ROBERT PARKER

DAVID JOHN PARKER
LORRAINE M PARKER
Respondents

Hearing:26 July 2006

Court:William Young  P, Arnold and Ellen France  JJ

Counsel:S Grant for Appellant

N R W Davidson QC and D M Lester for Respondents

Judgment:24 August 2006 at 11.15 am

JUDGMENT OF THE COURT

A        THE APPEAL IS DISMISSED.

BThe respondents are awarded costs of $3,000 with the usual disbursements.  We certify for second counsel.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       In a decision delivered on 17 August 2005, Williams J struck out the appellant’s proceeding on the basis it was an abuse of process.  Subsequently, in a decision delivered on 11 January 2006, Williams J awarded costs to the respondents on a 3C basis together with an appropriate allowance for second counsel and disbursements.  The appellant was granted leave to appeal against the decision to strike out and against the costs award.

[2]       After some initial discussion at the hearing of the appeal, the matter was adjourned briefly to allow counsel for the appellant to take some further instructions.  When the hearing resumed, Mrs Grant for the appellant advised that the appeal against the decision to strike out was withdrawn.  The decision to abandon this aspect of the appeal was, in our view, a sensible one.  The appeal against the decision to strike out was without merit as the current proceedings were an attempt to relitigate an issue that was squarely raised in the earlier proceedings between the same parties but was not disputed by the appellant.

[3]       The hearing continued on the question of costs only.

Decision on costs in the High Court

[4]       Williams J rejected the respondents’ submissions that an award of indemnity costs was appropriate.  The Judge did so on the basis the case did not have the exceptional features warranting such an award.

[5]       The Judge took the view the issues were however of greater complexity and possible significance than the ordinary run of cases and merited the instruction of second counsel.  For these reasons, Williams J did not accept the appellant’s submission that costs should be awarded on a 2B basis.  A higher award, on a 3C basis, was seen as appropriate.

The challenge to costs

[6]       In written submissions, the appellant challenged the Judge’s conclusion that the proceedings were of such complexity or significance as to justify an award on a 3C basis.  However, in oral argument, the appellant’s criticism was that not all of the steps in the proceeding justified awarding 3C costs.  In particular, the appellant says that none of the three steps preceding the actual preparation for the hearing warranted costs on a 3C basis.  For those steps, costs on a 2B basis were appropriate.

[7]       As the appellant acknowledges, this is an appeal against the exercise of a discretion.  The appellant must show that the Judge was “acting on a wrong principle or failed to take into account some relevant matter or took into account some irrelevant matter or was plainly wrong”:  May v May  (1982) 1 NZFLR 165, 170; Alex Harvey Industries Ltd v CIR (2001) 15 PRNZ 361 (CA).

[8]       As this Court said in Thoroughbred & Classic Car Owners’ Club Incorporated v Coleman & Anor CA203/93 25 November 1993 at 2:

It is unusual for an appeal to be brought to this Court on costs only and only rarely could an appeal succeed in that field for this Court is always especially reluctant to disturb a decision of a High Court Judge on a matter as discretionary as that of costs.

[9]       The conclusion that the case warranted an award on a 3C basis was plainly open to Williams J.  While the strike out action involved the application of well settled principles the relevant aspects required a consideration of the litigation involving these parties which has a lengthy history including an appeal to the Supreme Court: Otago Station Estates Limited v Parker [2005] NZSC 16.

[10]     Against that background, there is no basis for this Court on an appeal to interfere with the Judge’s view that category 3C was an appropriate categorisation for all of the steps in the proceeding. A comparatively large amount of time was reasonable for all of those steps. We also agree with the respondents that the overall result was fair and reasonable.

Costs in this Court

[11]     Although the hearing was truncated, the matter was set down for a half day and appearances were required.  Further, the respondents did have to prepare submissions for the full appeal.  An award of costs in this Court is therefore appropriate.  The respondents are entitled to costs in the sum of $3,000 with usual disbursements.  It is appropriate to certify for second counsel.

Result

[12]     The appeal is dismissed.  We award the respondents $3000 costs with usual disbursements and certify for second counsel.

Solicitors:

Burton & Co, Auckland for Appellant 
Berry & Co, Oamaru for Respondents