QBE Insurance (International) Ltd v Steward Motorsports European Ltd

[2014] NZHC 886

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003382 [2014] NZHC 886

UNDER

Section 72 of the District Courts Act 1947

IN THE MATTER

of an appeal against the judgment of the
District Court

BETWEEN

QBE INSURANCE (INTERNATIONAL) LIMITED

Appellant

AND

STEWARD MOTORSPORTS EUROPEAN LIMITED Respondent

Hearing:	15 April 2014
Counsel:	SRJ Hamilton for Appellant M Dellow for Respondent
Judgment:	2 May 2014

COSTS JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 2 May 2014 at 11.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Kennedys, Auckland.

Anderson Creagh Lai, Auckland. R Dellow, Auckland.

QBE INSURANCE (INTERNATIONAL) LTD v STEWARD MOTORSPORTS EUROPEAN LTD [2014] NZHC 886 [2 May 2014]

[1]      There is a dispute between the appellant and the respondent in relation to the quantum of the 2B costs that have been awarded in favour of the successful respondent.  The respondent has claimed in respect of two particular items on the appeal, and the appellant contends that they cannot properly be claimed.

First item – commencement of response to appeal

[2]      Schedule 3 of the High Court Rules in setting out the time allocations for general civil proceedings states at item 53: “Commencement of response to appeal or cross-appeal”.  It sets out various time allocations for the various scales that apply to this item, the relevant period for scale B being 0.5 days.

[3]      There   is   no   actual   document   provided   for   in   the   rules   that   is   a

“commencement of response to appeal”. There was no cross-appeal.

[4]      The  successful  respondent  in  claiming  for  this  item  submitted  that  its allowance cannot turn on the filing of a particular document.  It is accepted that no “commencement of response to appeal” was filed but it is submitted that this is an item that applies whenever a respondent receives a notice of appeal.

[5]      The appellant on the other hand submitted that the absence of the filing of any such document is fatal and the amount cannot be claimed.

[6]      If the  appellant  is correct,  given the absence  of any “commencement  of response” document, item 53 would be meaningless and unnecessary.  It could never apply as there is no such document.  This leads me to the conclusion that what must be intended by the rule is the cost of perusing and assessing the notice of appeal and any points on appeal, understanding them and initiating the response process.

[7]      This view is supported by the historical wording of then-item 13 in the High Court Rules 1985 relating to the “Commencement of appeal or review”.   Item 13 explicitly provided that this step included “assessing the original decision, noting appealable or reviewable points, and filing and serving notice of appeal and points of appeal or notice of application”.   While the High Court Rules 1985 as originally enacted did not provide an allocation for commencing a response to the appeal or

cross-appeal (which was only included as from 14 June 2012), I consider that the explanation in item 13 of what the commencement of an appeal involves applies equally to  what  the  commencement  of  a  response  involves,  obviously  with  the exception of the need to file and serve a notice of appeal.1   On this analysis, item 53 of the existing High Court Rules which relates for the commencement of a response to an appeal or cross-appeal provides for the time taken in assessing the original

decision, assessing the notice of appeal and considering any points of appeal.

[8]      I appreciate that there are separate items for the case management of the appeal (item 54) and the preparation of written submissions (item 56), but nevertheless I take the view that item 53 covers a different area of work, being the initial assessment process.

[9]      I therefore uphold that particular items of the costs claimed.

Second item – preparation of case on appeal

[10]     The argument in relation to this item is similar to that which relates to item

53.  Item 55 reads: “Preparation of case on appeal”, and there is an allocation of one

day on a scale B appeal.

[11]     The situation can be contrasted with the position in relation to the common bundle for a trial, where there are separate items for the plaintiff’s preparation of the common bundle (item 31) and the defendant’s preparation of the common bundle (item 32).

[12]     I interpret item 55 as applying only to the actual task of preparing the formal case on appeal.2   That is usually the task of the appellant only.  In other words, if the usual situation applies where the preparation of the case on appeal is only carried out

by the appellant, and there is no involvement of the respondent or involvement is

1      In White v Rodney District Council HC Auckland CIV-2009-404-1880 and 2735, 12 March

2010, Woodhouse J pointed out that there was no “respondent’s equivalent of commencement of appeal” which would involve reading the original decision, considering a notice of appeal and the points raised, and taking the appropriate steps.

2      See Perkins v Purea [2010] NZCA, (2010) 19 PRNZ 918 (CA) at [5] where the Court of Appeal considered that this item in the Court of Appeal (Civil) Rules 2005 related to preparing the formal case on appeal.

minimal, the respondent cannot claim under item 55.   If, however, as can be sometimes the case when the respondent is the Crown, the Crown prepared the case on appeal then the Crown might well be able to claim it.   Equally if there was a situation where as a matter of fact there was a mutual preparation of the case on appeal, then it might well apply to both sides.

[13]     Here, however, it would appear that the usual situation has applied, and the appellant  has  been  solely  responsible  for  the  case  on  appeal.    I take  the  view therefore that the respondent cannot claim for this work as it has not done it.   I therefore disallow the claim under item 55.

[14]     This will mean as a matter of practice in relation to the judgment that the respondent is awarded costs of $12,139.00 and disbursements of $100.80 as set out in the table below:

Item:	Step:	Days Allocated:	Amount:
53	Commencement of response to appeal	0.5	$995
11	Filing memorandum for first management conference	0.4	$796
13	Appearance at first case management conference	0.3	$597
11	Filing memorandum for second management conference	0.4	$796
13	Appearance at second case management conference	0.3	$597
56	Preparation of written submissions	3	$5,970
57	Appearance at hearing	1	$1,990
29	Sealing Judgment	0.2	$398
Total 2B Costs	6.1	$12,139

Disbursements
Copying/printing	$50.80
Sealing fee	$50.00
Total disbursements	$100.80

……………………………..

Asher J