Tarahau Farming Limited v Shearing Services Kamupene Limited (in liquidation)
[2020] NZCA 238
•15 June 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA311/2019 [2020] NZCA 238 |
| BETWEEN | TARAHAU FARMING LIMITED |
| AND | SHEARING SERVICES KAMUPENE LIMITED (IN LIQUIDATION) |
| Court: | French and Stevens JJ |
Counsel: | Appellants in person represented by P Te Whata |
Judgment: | 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
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