RD1 Limited v McKinnon

[2013] NZHC 178

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003499 [2013] NZHC 178

UNDER  the District Courts Act 1947

IN THE MATTER OF     an appeal against the decision of the

District Court at Auckland

BETWEEN  RD1 LIMITED Appellant

ANDIAN JAMES MCKINNON Respondent

Hearing:         13 February 2013 (On the Papers)

Counsel:         M D Branch and S J Rawcliffe for the Appellant

M J Smyth for the Respondent

Judgment:      13 February 2013

JUDGMENT OF DUFFY J [Re Recall of Costs Judgment]

This judgment was delivered by Justice Duffy on 13 February 2013 at 12.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     M  J  Smyth  P  O  Box  91053  Victoria  Street  West Auckland  1142  for  the

Respondent

Solicitors:    Harkness  Henry  Private  Bag  3077  Waikato  Mail  Centre  Hamilton  3240 (DX CP20015) for the Appellant

RD1 LTD v MCKINNON HC AK CIV-2011-404-003499 [13 February 2013]

[1]      On 12 February 2013, I issued a costs judgment (see RD1 Ltd v McKinnon HC Auckland CIV-2011-404-003499, 12 February 2013). At the time I did so, I was in receipt of submissions from the appellant on costs and ancillary matters.  In my judgment on the appeal dated 4 November 2011, at [35] I made timetable orders which required the respondent to file its submissions on costs 10 days after receiving the appellant’s submissions on costs.  That time limit would have expired in early

2012.   However, due to an administrative oversight, the file did not come to my attention until recently.   I decided that the absence of any submissions from the respondent indicated it had no interest in making any submissions in response.

[2]      Since my judgment on costs was issued, the respondent has contacted the Registry to advise that whilst my judgment refers to the respondent having made no submissions on costs, he had done so in submissions filed on 6 December 2012.  The respondent  has  also  advised  that  the  appellant  filed  reply  submissions  dated

21 December 2012.

[3]      Neither the respondent’s submission nor the reply submission was brought to my attention.  In the circumstances, I consider that justice requires that I recall the judgment on costs.

[4]      The submissions reveal that there have been discussions between the parties that have not eventuated in a settlement.  This explains the non-compliance with the timetable directions.   The submissions address the substantive issues that are outstanding between the parties.  I propose to consider the submissions and issue a new judgment.

Duffy J