Stokes v Prain - [2021] NZCA 683

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA467/2020
[2021] NZCA 683

BETWEEN	COLIN PETER STOKES Appellant
AND	JUSTIN WILLIAM PRAIN First Respondent CARDNO (NZ) LIMITED Second Respondent GREGORY ROBERT SMITH Third Respondent

Hearing:	2 September 2021 (further submissions received 13 September 2021)
Court:	Gilbert, Duffy and Peters JJ
Counsel:	Appellant in person J Moss for First Respondent M R C Wolff and H J Dempsey for Second Respondent Third Respondent in person
Judgment:	14 December 2021 at 10 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is declined.
BThe appeal is dismissed subject to any adjustments required to the costs award to take account of the matters noted at [54] and [56] of this judgment.
C The appellant must pay costs to the first and second respondents for a standard appeal on a band A basis and any usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

This is an appeal against a judgment of Associate Judge Lester dated 22 July 2020, in which the Associate Judge ordered Mr Stokes, the appellant, and Mr Smith, the third respondent, to pay costs on a 2B basis, increased by 40 per cent, and disbursements to the first and second respondents, Mr Prain and Cardno (NZ) Ltd (Cardno).[1] On the basis of the information before the Associate Judge, the increase brought the award to Mr Prain to $86,661.40 and to $87,665.20 for Cardno, plus disbursements.
[1]Smith v Noble Investments Ltd [2020] NZHC 1766 [Costs judgment].
The Associate Judge’s decision on costs followed his earlier decision of 5 June 2020, granting applications by Mr Prain and Cardno to strike out Messrs Stokes and Smith’s sixth amended statement of claim on the ground that it disclosed no reasonably arguable cause of action.[2] No appeal against the Associate Judge’s decision to strike out has been brought by Mr Stokes (or Mr Smith). This appeal is against the decision on costs only. The significance of the lack of appeal against the decision to strike out is that we must proceed on the basis that decision was correct. Mr Prain and Cardno submit most of the grounds of appeal advanced against the Associate Judge’s decision on costs are in fact an attempt to re-litigate his decision to strike out the sixth amended statement of claim.
[2]Smith v Noble Investments Ltd [2020] NZHC 1236 [Strike out judgment].
On appeal, Mr Stokes submits that the award of costs should be quashed, and he also seeks to rely on an affidavit dated 16 November 2020 that he has filed in support of the appeal. Mr Stokes has not made a formal application to adduce this evidence, and its admission is opposed. We determine this matter below.
Although Mr Smith did not formally appeal against the Associate Judge’s costs decision, we allowed him to make brief submissions at the hearing and then to file written submissions, recording his oral submissions, afterwards.
Mr Prain and Cardno oppose the appeal.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stokes v Prain

Details

AGLC: Stokes v Prain [2021] NZCA 683
Case: [2021] NZCA 683
Decision Date: 14 December 2021 at 10 am

CaseChat Overview and Summary

The appeal in Stokes v Prain was brought by Mr Stokes against a costs order made by Associate Judge Lester. The appeal was against the exercise of judicial discretion in ordering Mr Stokes and Mr Smith to pay increased costs to Mr Prain and Cardno. The Court of Appeal held that an appeal against an award of costs is an appeal against the exercise of judicial discretion and should not interfere with an award of costs unless the Judge acted on a wrong principle, failed to take account of some relevant matter, factored in the irrelevant, or was plainly wrong. The Court found that the Associate Judge was not plainly wrong in his decision to award costs and dismissed the appeal. The Court also declined to admit an affidavit that Mr Stokes sought to adduce as further evidence on appeal. The affidavit was deemed neither cogent nor credible and was irrelevant to the issues on appeal.

Orders