Wiseline Corporation Ltd v Hockey

[2004] NZCA 232

IN THE COURT OF APPEAL OF NEW ZEALAND

CA4/03
CA245/02

AND BETWEEN             WISELINE CORPORATION LIMITED

First Appellant

ANDSPACEWAYS HOLDINGS LIMITED

Second Appellant

ANDRITA HOCKEY AS EXECUTRIX IN THE ESTATE OF RUSSELL GARLAND HOCKEY

First Respondent

ANDRITA HOCKEY

Second Respondent

Coram:Anderson P
   McGrath J
   Glazebrook J

Counsel:P J Davey for Appellants

   J Toebes for Second Respondent

Judgment (on the papers, by consent):   20 September 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       In CA245/02 the appellants filed a notice of appeal but did not apply, within the six months specified by r 10 of the Court of Appeal (Civil) Rules 1997, for a fixture and did not file a case on appeal within the requisite time.  An application for an extension of time pursuant to r 10(1)(b) was dismissed.

[2]       The second respondents incurred legal costs in receiving the notice of appeal, receiving the notice of application for enlargement of time to file the case on appeal and apply for a fixture, and attending to a notice of opposition and preparation of submissions in opposition.  They seek $2,000 costs in that respect.

[3]       In CA4/03 the appellants filed a notice of appeal on 13 January 2003 against certain orders made by the High Court.  Although a form of case on appeal was filed within the time specified by r 10 no further steps were taken by them.  The second respondents have accordingly applied for an order striking out the appeal for want of prosecution.  The appellants do not oppose that course and there will be an order striking out accordingly.  But the second respondents also seek costs in respect of that appeal, in the sum of $2,000.

[4]       On each of these appeals the appellants oppose the making of any costs order and further submit that if an order is made it should not be as high a sum as $2,000 in each case.  They submit that if costs are awarded they should be limited to the equivalent of costs on a 2B basis in the High Court, that is $870.

[5]       The appellants have pursued their litigation, by way of appeal, in ways which the second respondents could not sensibly ignore.  The second respondent’s solicitors and counsel would have to be instructed to respond to the appellate steps taken.  It is not open to the appellants to complain that the second respondents have taken the appeals seriously enough to respond to them in some way which would reasonably incur legal costs.  Further, meritless appeals should not be encouraged by some amorphous diffidence about costs.

[6]       We are of the view that in all the circumstances the second respondents should have costs on each of the appeals equivalent to one-quarter of the daily rate usually applied by this Court.  Accordingly, there will be orders striking out the appeal in CA4/03 and awarding costs against the appellants on that appeal of $1,500; and on CA245/02 costs of $1,500 are also awarded against the appellants.

Solicitors:
Buddle Findlay, Wellington for Second Respondent