Time v Fagalilo - [2011] NZCA 605

IN THE COURT OF APPEAL OF NEW ZEALAND

CA191/2010
[2011] NZCA 605

BETWEEN SENETI TIME
Appellant

AND LUAIVA FAGALILO
Respondent

Court: O'Regan P, Heath and Lang JJ

Counsel: R J Buchanan for Appellant
O Woodroffe for Respondent

Judgment: 1 December 2011 at 2.30 pm

JUDGMENT OF THE COURT

AWe order that the respondent pay the appellant costs for a standard appeal on a Band A basis plus usual disbursements.
BWe ask the Registrar to refund the appellant’s security for costs.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

In our judgment of 22 August 2011[1] we reserved costs. We have received submissions from both parties and now give our decision on costs. There was some delay in the parties’ costs submissions being drawn to our attention which has contributed to some delay in the issuing of this decision, for which we express our regret. In the judgment, we use the same definitions and refer to the parties, witnesses and counsel in the same way as in the principal judgment.
[1] Time v Fagalilo [2011] NZCA 402 (“the principal judgment”).
The appellant seeks standard costs with an uplift for increased costs. He asks this Court to make an order that the Trust Board[2] is liable to pay those costs, along with the respondent. He also seeks a return of his security for costs.

Costs

[2] The Green Valley Samoan Assembly of God Property Trust Board.

Ms Woodroffe for the respondent submitted that the cultural realities of this appeal mean the Court should exercise its discretion under r 53F of the Court of Appeal (Civil) Rules 2005 (the Rules) not to award costs. We do not agree. There is nothing to suggest that a costs award would further the schism between these two groups. The appellant is entitled to recover costs as he succeeded on both grounds of appeal in this Court.
We are satisfied that the appeal is appropriately classified as a standard appeal rather than a complex appeal. Costs should be calculated on a Band A basis.

Increased costs

Mr Buchanan for the appellant submitted that increased costs were appropriate under r 53E of the Rules because the appellant had acted reasonably throughout and made overtures for settlement to the respondent, which had all been rejected. He said that the respondent would have been significantly better off if one of those offers had been accepted, when compared to the outcome of this Court’s judgment.
The following details the settlement efforts that were made:
(a)After the High Court hearing but before judgment: an email sent by Mr Buchanan on 12 February 2010 to Ms Woodroffe offering to split the assets of the Trust Board 50/50 between the two parties, with adjustments for any reduction in the overall level of debt of the Trust Board to the date of the offer and rental payments which the appellant’s group had incurred in hiring premises from the time they were excluded in October 2005. In addition, indemnity costs to the appellant or…

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 Time v Fagalilo

Details

AGLC: Time v Fagalilo [2011] NZCA 605
Case: [2011] NZCA 605
Decision Date: 1 December 2011

CaseChat Overview and Summary

This appeal, Time v Fagalilo, was heard by O'Regan P, Heath, and Lang JJ of the Court of Appeal of New Zealand. The central issue before the court was the allocation of costs between the appellant, Seneti Time, and the respondent, Luaiva Fagalilo. The case originated from a dispute concerning the Green Valley Samoan Assembly of God Property Trust Board. Time sought standard costs with an uplift for increased costs, arguing that the respondent should bear these costs due to the cultural realities of the case. He also sought the return of his security for costs.

The court was tasked with determining whether to exercise discretion under r 53F of the Court of Appeal (Civil) Rules 2005 to not award costs, considering the cultural context. The court concluded that there was no evidence suggesting that awarding costs would exacerbate divisions between the groups. Time was entitled to recover costs as he succeeded on both grounds of appeal. The appeal was classified as a standard appeal, and costs were to be calculated on a Band A basis. The court declined the application for increased costs, reasoning that the respondent had not acted unreasonably in rejecting settlement offers. The court found that the attempts to reconcile after the Court of Appeal hearing were not relevant to an uplift for costs as the costs had already been incurred.

The court also considered the application for an award of costs against the Trust Board, concluding that it was not appropriate to make such an award. The court decided to award costs solely against the respondent, Fagalilo. Finally, the court ordered that the respondent pay the appellant’s costs for a standard appeal on a Band A basis plus usual disbursements and requested the Registrar to refund the appellant’s security for costs.

Orders