Ruban v Your Builder Limited

[2025] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA629/2024
 [2025] NZCA 382

BETWEEN	DMITRY RUBAN AND ALEXANDRA MATVEEVA Appellant
AND	YOUR BUILDER LIMITED Respondent

Court:	Courtney and Katz JJ
Counsel:	D A Cowan and J E G San Diego for Appellant K R Narayan and N Toma for Respondent
Judgment: (On the papers)	1 August 2025 at 2 pm

JUDGMENT OF THE COURT

AMr Ruban and Ms Matveeva must pay Your Builder Ltd costs of $478 within 10 working days of the date of this judgment.

BIf Mr Ruban and Ms Matveeva fail to pay the costs ordered, they must, in addition, pay further costs of $478, together with disbursements of $65.

REASONS OF THE COURT

(Given by Courtney J)

Application for costs

1. Mr Ruban and Ms Matveeva engaged Your Builder Ltd to undertake building work.  They paid a deposit.[1]  Later, they complained about defects in the work, purported to cancel the contract and demanded that the deposit be returned. 
   

   [1]Your Builder Ltd v Ruban [2024] NZHC 2462 at [1].

   [2]At [2].

   Your Builder did not accept that they were entitled to cancel the agreement.  Instead, it purported to cancel the contract, forfeit the deposit and apply it towards unpaid invoices, contractual interest, lost profit and legal fees.[2]

2. Mr Ruban and Ms Matveeva issued a statutory demand for the deposit, which the High Court set aside on the ground that a genuine and substantial dispute over the debt’s existence was established.[3]  Mr Ruban’s and Ms Matveeva’s appeal against that decision was later deemed to have been abandoned as a result of their failure to file the case on appeal.[4]

   [3]At [43] and [65].

   [4]Court of Appeal (Civil) Rules 2005, r 43.

3. Your Builder seeks costs and disbursements totalling $1,021 calculated as:

   (a)costs of $956 (being $478 for filing a notice of appearance and
   $478 for sealing the costs order) in accordance with r 53C of
   the Court of Appeal (Civil) Rules 2005 and schs 2 and 3 of
   the High Court Rules 2016; and

   (b)disbursements of $65 being the fee on sealing
   the costs order in accordance with the schedule to the
   Court of Appeal Fees Regulations 2001.

4. Mr Ruban and Ms Matveeva oppose the application on the grounds that there is no provision in the Court of Appeal (Civil) Rules 2005 for costs for filing a notice of appearance in response to a notice of appeal and therefore this Court does not have the discretion to award such costs or even to award the cost of sealing a de minimis amount.

Decision

1. This Court has an overriding discretion to make an order for costs
   that seem just concerning any part of the appeal.[5]  Rule 43(6) of
   

   [5]Rule 53.

   [6]Rule 53A(1)(a).

   the Court of Appeal (Civil) Rules provides that the fact an appeal is treated as abandoned does not affect the power of the Court to determine an application for costs.  The appeal was deemed abandoned, and Your Builder (the successful party) is therefore entitled to costs.[6]

2. It is correct that the Court of Appeal (Civil) Rules do not explicitly provide for the costs being sought.  However, it is well‑established that where there is a gap in those Rules, the High Court Rules can be applied by analogy and in the manner that this Court thinks best calculated to promote the ends of justice.[7]  Schedule 3 of the High Court Rules 2016 provides for costs for filing a notice of appearance (0.2 days).  It follows that this Court has the discretion to award costs for this step in the context of this appeal.  It is true that the amount involved is minimal.  Nevertheless, it represents a contribution to the costs involved in counsel taking that step.  There is no reason for costs to be refused just because the amount is modest.

   [7]Harrison v Harrison [2020] NZCA 189, (2020) PRNZ 189 at [4], citing Court of Appeal (Civil) Rules, r 5(4).

3. The High Court Rules also provides for sealing a judgment (0.2 days).  
   Mr Ruban and Ms Matveeva oppose the claims for costs and disbursements relating to sealing the costs judgment on the ground that they will not be incurred if the costs are paid before sealing.  This is a fair point and can be addressed through the terms of the costs order.

High Court costs

1. Your Builder requests the proceeding be remitted to the High Court for
   the determination of costs in that Court.  The reason for this is unclear, as
   Associate Judge Gardiner awarded Your Builder costs on 30 September 2024, as follows:[8]

   [13]     I order the respondents to pay the applicant’s 2B costs of $13,981.50, with a 20 per cent uplift of $2,796.30, plus disbursements of $1,374, a total of $18,151.80. I do not certify for second counsel as the case did not warrant it.

   [8]Your Builder Ltd v Ruban [2024] NZHC 2817.

2. We can see no reason to remit the proceeding to the High Court.

Result

1. Mr Ruban and Ms Matveeva must pay Your Builder Ltd costs of $478 within 10 working days of the date of this judgment.

2. If Mr Ruban and Ms Matveeva fail to pay the costs ordered, they must, in addition, pay additional costs of $478 together with disbursements of $65.

Solicitors:
Cowan Law, Auckland for Appellant
Martelli McKegg, Auckland for Respondent