Tarahau Farming Limited v Shearing Services Kamupene Limited (in liquidation)

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA311/2019
[2020] NZCA 238

BETWEEN	TARAHAU FARMING LIMITED First Appellant MAUNGA HIKURANGI KOPOREIHANA MAORI Second Appellant KAITIAKI AHUWHENUA TRUST Third Appellant
AND	SHEARING SERVICES KAMUPENE LIMITED (IN LIQUIDATION) First Respondent CRAIG ALEXANDER SANSON AND DAVID BRIDGMAN Second Respondents

Court:	French and Stevens JJ
Counsel:	Appellants in person represented by P Te Whata G A D Neil and B J Hamilton for Respondents
Judgment: (On the papers)	15 June 2020 at 10 am

JUDGMENT OF THE COURT AS TO COSTS

Tarahau Farming Ltd must pay the respondents one set of costs in the sum of $12,000 together with usual disbursements.
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REASONS OF THE COURT

(Given by French J)

Tarahau Farming Ltd purported to file a notice of appeal. The notice was served out of time and did not comply with the requirements of r 30(1A) of the Court of Appeal (Civil) Rules 2005 (the Rules). Tarahau Farming then applied for an extension of time to bring the appeal under r 29A. The application was opposed by the respondents.
In a judgment issued on 29 November 2019, we granted the application for an extension of time provided Tarahau Farming complied with certain directions.[1] The first direction was to consider obtaining legal advice and the second was to file and serve an amended notice of appeal complying with r 30(1A) no later than 14 February 2020.
[1]Tarahau Farming Ltd v Shearing Services Kamupene Ltd (in liq) [2019] NZCA 601.
The judgment also stated that if the second direction was not complied with by 14 February 2020, then the order granting the extension of time would be revoked with the effect that the application to extend time was declined.
As regards the costs of the application, these were reserved until after 14 February 2020.
Tarahau Farming failed to file an amended notice of appeal by 14 February 2020 and accordingly the conditional order granting the extension of time was automatically substituted with an order declining it.
This judgment now addresses an application made by the respondents for costs on an indemnity or increased costs basis. The respondents advise that the costs actually incurred in responding to the documentation filed by Tarahau Farming amount to $21,697.19. Those costs have been itemised in a schedule provided to the Court. The figure of $21,697.19 is significantly greater than the amount of scale costs calculated on the basis of a standard appeal which amount to $3,346. Tarahau Farming was given an opportunity to be heard on the issue of costs but did not take that opportunity.
There is no reason why costs should not follow the event. That is to say, the respondents being the successful party are entitled to costs.
As to the amount of the costs award, we are not persuaded that full indemnity costs are appropriate. However, we do accept that the respondents are entitled to increased costs under r 53E on the grounds that Tarahau Farming acted unnecessarily in filing its notice of appeal, and contributed unnecessarily to the time and expense of the appeal. In particular, we point to its conduct in filing the notice of appeal without having sought a rehearing in the High Court, the filing of prolix documents that contained significant irrelevant material, as well as its failure to comply with the Rules. Taking into account all the circumstances, we consider a just amount of costs is $12,000 and we so order.

Outcome

Tarahau Farming Ltd must pay the respondents one set of costs in the sum of $12,000 together with usual disbursements.

Solicitors:
Meredith Connell, Auckland for Respondents

CaseChat Overview and Summary

Tarahau Farming Limited, Maunga Hikurangi Koporeira Maori, and Kaitiaki Ahuwhenua Trust have appealed against the decision of the High Court. They are collectively referred to as the appellants. The respondents to the appeal are Shearing Services Kamupene Limited, which is in liquidation, Craig Alexander Sanson, and David Bridgman. The primary dispute revolves around the enforcement of a judgment debt and the subsequent proceedings in the liquidation of Shearing Services Kamupene Limited. The case was heard by French and Stevens JJ.

The court was required to determine whether the appellants were entitled to increased costs under r 53E of the Court of Appeal (Civil) Rules 2005. This rule allows for costs to be awarded if a party has acted unnecessarily or contributed unnecessarily to the time and expense of the appeal. The appellants had initially filed a notice of appeal out of time and without compliance with procedural requirements. They subsequently applied for an extension of time, which was granted on conditions, including the filing of an amended notice of appeal by a specified date. The appellants failed to meet this condition, leading to the automatic revocation of the extension order. The respondents sought costs on an indemnity or increased costs basis, arguing that the appellants' actions were unnecessary and contributed to the increased costs of the appeal.

The court found that the appellants were indeed entitled to increased costs. The appellants filed their notice of appeal without seeking a rehearing in the High Court, submitted prolix documents with irrelevant material, and failed to comply with the Rules. The court determined that the respondents, as the successful party, were entitled to costs. While the court was not persuaded that full indemnity costs were appropriate, it did find that increased costs were warranted under r 53E. After considering all the circumstances, the court ordered that Tarahau Farming Limited must pay the respondents one set of costs in the sum of $12,000, together with usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established