Vorwerk v Jordan

[2007] NZCA 195

IN THE COURT OF APPEAL OF NEW ZEALAND

CA228/06
[2007] NZCA 195

BETWEENJURGEN VORWERK

Applicant

ANDFRIEDRICH JORDAN

Respondent

Court:O'Regan, Robertson and Wilson JJ

Counsel:G P Tyrrell for Applicant

E J Forster for Respondent

Judgment (On the Papers):     16 May 2007 at 11 am

JUDGMENT OF THE COURT

The respondent’s application for costs is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

[1]       Mr Vorwerk filed an application to bring an appeal out of time against a decision of an Associate Judge.  He filed the application himself, but subsequently instructed lawyers and sought legal aid.  He was successful in obtaining a grant of legal aid, but has now abandoned the appeal and has been declared bankrupt.

[2]       The matter came before us in the miscellaneous motions list and we formally accepted the abandonment and directed the Registrar to note the matter as having been abandoned.  However, we reserved the position of costs because the respondent had, through his counsel, indicated that he sought an award of costs.  This judgment deals with the question of costs. 

[3]       The respondent seeks costs on the basis that it was necessary for his counsel to file a notice of opposition to the application to extend the time for the bringing of an appeal.  The notice of opposition was accompanied by a reasonably comprehensive memorandum from counsel and a brief affidavit from the respondent’s solicitor.  These documents were prepared in order to comply with the requirements of the Court of Appeal (Civil) Rules 2005.  At the time they were filed Mr Vorwerk was not legally aided, but he obtained legal aid subsequently.

[4]       Counsel for the applicant opposed the granting of costs.  He pointed out that the applicant is now bankrupt.  He said that the applicant had notified both the Court and the respondent that legal aid had been sought and that a decision was pending, and that the only step which the respondent had taken prior to being put on notice of the legal aid application was the filing of the notice of opposition, memorandum in support and affidavit in support.  He argued that, as the applicant was legally aided at the time of the abandonment, it was not appropriate that an order of costs be made.

[5]       We do not consider that an award of costs is appropriate in this case.  The applicant was, at the time of the abandonment, a legally aided litigant, and there were no special circumstances calling for the making of an award of costs.  We therefore decline the application for costs.

Solicitors:
Saunders & Co, Christchurch for Applicant
Adrian Coleman, Hastings for Respondent