Prescott v Thompson - [2022] NZCA 163

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA304/2020
CA478/2020
[2022] NZCA 163

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	VIOLET GEORGINA THOMPSON First Respondent DISTRICT COURT AT AUCKLAND Second Respondent

Court:	Cooper P
Counsel:	Applicant in person R E Harrison QC for First Respondent No appearance for Second Respondent
Judgment: (On the papers)	5 May 2022 at 3 pm

JUDGMENT OF COOPER P AS TO COSTS

Mr Prescott must pay costs in the sum of $5,511.50, comprised of:

(a)$2,151 in respect of appeal CA304/2020;
(b)$1,673 in respect of appeal CA478/2020; and
(c)$1,687.50 in respect of the further costs claimed.

____________________________________________________________________

REASONS

On 11 November 2021, this Court refused two applications by Mr Prescott for extensions of time to file the case on appeal and apply for a hearing date in respect of two appeals, CA304/2020 and CA478/2020. As a result, the appeals were deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 (Rules).[1]
[1]Prescott v Thompson [2021] NZCA 590.
Counsel for Ms Thompson, Mr R E Harrison QC, now applies for costs in relation to work done on the substantive appeals, as well as for indemnity or increased costs in respect of the current costs application. Mr Prescott opposes both applications.

Background

Mr Prescott filed his appeal in CA304/2020 on 8 June 2020 and his appeal in CA478/2020 on 24 August 2020.
The appeal CA304/2020 was originally deemed abandoned on 8 September 2020 after Mr Prescott failed to meet the requirements of r 43 of the Rules. On 7 December 2020, Mr Prescott applied for an extension of time under r 43(2).
As to the appeal CA478/2020, on 26 January 2021 the Deputy Registrar granted a suspension of the application of r 43 until 26 February 2021.[2] That meant the last day by which Mr Prescott could apply for a hearing date and file the case on appeal was 26 February 2021. On 3 March 2021, Mr Prescott applied for an extension of time to do so under r 43(2).
[2]Court of Appeal (Civil) Rules 2005, r 43(1B)(b).
Mr Prescott filed submissions in support of his application for an extension of time in appeal CA304/2020 on 25 January, 22 March and 12 May 2021. His submissions filed on 12 May 2021 also addressed his application for a further extension of time in appeal CA478/2020.
This Court refused Mr Prescott’s applications on 11 November 2021.

Application for costs

For Ms Thompson, Mr Harrison submits the following attendances in respect of the two appeals are appropriately recoverable on a band A basis at the category 2 daily recovery rate of $2,390:

CA304/2020
Item 9 (0.2 days)	Memorandum for Registrar (plus affidavit) dated 11 December 2020	$478.00
Item 11 (0.5 days)	Submissions in opposition to leave application dated 4 February 2021	$1,195.00
Item 9 (0.2 days)	Supplementary submissions in reply dated 12 April 2021	$478.00
TOTAL	$2,151.00

CA478/2020
Item 9 (0.2 days)	Memorandum for Registrar dated 2 February 2021	$478.00
Item…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prescott v Thompson

Details

AGLC: Prescott v Thompson [2022] NZCA 163
Case: [2022] NZCA 163
Decision Date: 5 May 2022 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand delivered a decision in Prescott v Thompson (CA304/2020 and CA478/2020), where Peter Richard Prescott, the applicant, appealed against Violet Georgina Thompson, the first respondent, and the District Court at Auckland, the second respondent. The appeals were deemed abandoned under rule 43 of the Court of Appeal (Civil) Rules 2005. Counsel for Ms Thompson, Mr R E Harrison QC, applied for costs in relation to the substantive appeals and indemnity or increased costs in respect of the costs application. Mr Prescott opposed both applications.

The legal issues that the court had to decide were whether Mr Prescott's appeals were abandoned under rule 43 of the Court of Appeal (Civil) Rules 2005 and whether there were exceptional circumstances that would prevent an award of costs against Mr Prescott under section 45(2) of the Legal Services Act 2011.

The court held that Mr Prescott had not been legally aided for the appeals in CA304/2020 and CA478/2020, and therefore, section 45(2) of the Legal Services Act 2011 did not bar the court from awarding costs against him. The application for costs made by Mr Harrison should be granted. The application for increased or indemnity costs was also granted as Mr Prescott's argument was obviously unmeritorious, and Ms Thompson had been put to unnecessary costs in dealing with it.

The court ordered that Mr Prescott pay costs in the sum of $5,511.50, comprised of $2,151 in respect of appeal CA304/2020, $1,673 in respect of appeal CA478/2020, and $1,687.50 in respect of the further costs claimed. The orders were made against Mr Prescott, and the costs were to be paid by him.

Orders