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 CourtBETWEEN
QBE INSURANCE (INTERNATIONAL) LIMITED
Appellant
AND
STEWARD MOTORSPORTS EUROPEAN LIMITED Respondent
Hearing: 15 April 2014 Counsel:
SRJ Hamilton for Appellant
M Dellow for RespondentJudgment:
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
- AGLC
- QBE Insurance (International) Ltd v Steward Motorsports European Ltd [2014] NZHC 886
- Case
- [2014] NZHC 886
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the respondent's claims for these two items were valid under the High Court Rules. Specifically, the court had to determine whether the absence of a formal document labelled "commencement of response to appeal" nullified the claim for this item. Additionally, the court had to assess whether the respondent could claim for the preparation of the case on appeal when the appellant had solely been responsible for this task. The resolution of these issues was crucial in determining the final costs awarded to the respondent.
Asher J concluded that the claim for the commencement of the response to the appeal was valid, despite the absence of a formal document. The court reasoned that the rule was intended to cover the initial assessment and preparation necessary to respond to the appeal, regardless of whether a specific document was filed. This interpretation was supported by historical rules that described similar processes for the commencement of an appeal. However, the court disallowed the claim for the preparation of the case on appeal, finding that this task was typically the responsibility of the appellant alone, and the respondent had not undertaken this work. The court's decision resulted in the respondent being awarded costs of $12,139.00 and disbursements of $100.80, as outlined in the judgment.
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