Slavich v Legal Complaints Review Officer

[2011] NZCA 198

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2010
[2011] NZCA 198

BETWEEN  JOHN KENNETH SLAVICH AND ANTHONY NICHOLAS SLAVICH
Applicants

AND  LEGAL COMPLAINTS REVIEW OFFICER
First Respondent

AND  HANNEKE BOUCHIER
Second Respondent

AND  MURRAY BRANCH
Third Respondent

Hearing:         17 May 2011

Court:             Arnold, Stevens and Wild JJ

Counsel:         J Slavich for Applicants
P J Gunn for First, Second and Third Respondents

Judgment:      20 May 2011 at 10.00 am

JUDGMENT OF THE COURT

AThe applicants jointly and severally must pay the costs of the first, second and third respondents.

B        The amounts of costs payable by the applicants will be:

(a)for the first and second respondents the sum of $940, plus costs for appearance of one counsel for a standard application on a band A basis and usual disbursements;  and

(b)for the third respondent the sum of $940 and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

1. On 14 February 2011 the applicants filed an application for extension of time for the allocation of a hearing and filing of the case on appeal,[1] as the applicants had failed to comply with the six month time limit.[2]  The application was opposed by the respondents, each of whom applied for an order striking out the appeal in accordance with r 37 of the Rules on the basis that a reduced sum for security for costs of $8,000 had not been paid by the applicants.[3]  The application for strike out was allocated a hearing date of 17 May 2011.

   [1]      Under r 43(3) of the Court of Appeal (Civil) Rules 2005 [the Rules].

   [2]      Rule 43(1) of the Rules.

   [3]      The background to both applications is set out in the Minute of Stevens J dated 4 May 2011.

2. On 12 May 2011 the applicants filed and served on the respondents a document described as a notice of abandonment of application to extend time.  Counsel for the respondents subsequently filed separate memoranda submitting that, as the application had been abandoned, the appeal should be treated as being abandoned.[4]  Counsel noted that as the appeal had been filed on 10 August 2010, the six month time limited expired on 10 February 2011 and the three month application for making an application for extension expired on 10 May.  Thus the applications to strike out the appeal were superfluous and were withdrawn by the respondents.

   [4]      Rule 43(1) of the Rules.

3. Counsel for the third respondent and counsel for the first and second respondents each applied for costs.  The applicants were notified of the applications for costs and Mr John Slavich informed the Registry by email that he was “happy for the issue of no costs to be dealt with on the papers”.  He said he did not wish to waste the time of the Court.

4. Mr Gunn appeared in support of the applications for costs, these being the only remaining issues.  Because the respondents were required to prepare memoranda in opposition, Mr Gunn sought costs of $940 for the first and second respondents together and a further $940 for the third respondent, a total of $1,880.  He also sought costs on the appearance for one counsel.

5. The abandonment of the application for extension was filed very late, being only three working days before the hearing.  We are satisfied that the application for costs by the respondents is entirely proper in the circumstances.

6. We award costs in favour of the respondents against the applicants on a joint and several basis.  The applicants must pay the following amounts:

   (a)for the first and second respondents, the sum of $940 plus an amount for one counsel only for a standard application on a band A basis and usual disbursements;  and

   (b)for the third respondent, the sum of $940 and usual disbursements.

Solicitors:
Crown Law Office, Wellington for First and Second Respondents
Harkness Henry, Hamilton for Third Respondent