Westminster Finance Ltd v Marac Finance Ltd

[2009] NZCA 496

IN THE COURT OF APPEAL OF NEW ZEALAND

CA509/2009
[2009] NZCA 496

BETWEENWESTMINSTER FINANCE LIMITED

Applicant

ANDMARAC FINANCE LIMITED

Respondent

Court:O'Regan, Arnold and Ellen France JJ

Counsel:R B Hucker for Applicant

D J Vizor for Respondent

Judgment:21 October 2009 2.30 pm

JUDGMENT OF THE COURT

We award costs to the respondent, calculated in accordance with [4] of the Reasons of the Court as well as usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan J)

[1] In our judgment declining Westminster’s application for a stay or interim relief ([2009] NZCA 395), we reserved costs. We said that, if the appeal was not proceeded with, Marac could apply for an award of costs in relation to the stay application.

[2]       We now have a memorandum from counsel for Marac, in which he seeks costs on Marac’s behalf following the abandonment of Westminster’s appeal.  Westminster has been given an opportunity to file submissions but has not done so.

[3]       We are satisfied that an award of costs is appropriate in this case.

[4]       Rule 53 of the Court of Appeal (Civil) Rules 2005 provides for costs awards in relation to appeals and applications for leave to appeal.  We see the application for stay as being broadly analogous to an application for leave to appeal.  In those circumstances we award costs to Marac at a level which would have applied to a standard application for leave to appeal, but treating the allocated time for preparation for the hearing as half a day rather than a whole day, and treating the appearance itself as a quarter day rather than a half day.  We also award usual disbursements.

Solicitors:
Hucker & Associates, Auckland for Applicant
Bell Gully, Auckland for Respondent