Worldwide NZ LLC v QPAM Ltd - [2009] NZCA 226

IN THE COURT OF APPEAL OF NEW ZEALAND
CA582/2008
[2009] NZCA 226

BETWEENWORLDWIDE NZ LLC

First Appellant
ANDJAMES GOSNEY

Second Appellant

ANDQPAM LIMITED

First Respondent
ANDJACOBSEN VENUE MANAGEMENT NEW ZEALAND LIMITED

Second Respondent

Hearing:26 March 2009

Court:Chambers, Randerson and Potter JJ
Counsel:M J Fisher for Appellants

A C Sorrell and S L Robertson for First Respondent
C P Browne for Second Respondent

Judgment:2 June 2009 at 4 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.
B        The order for costs made in the High Court on 27 August 2008 is quashed.
C        In substitution therefor, an order is made that the appellants must pay the first respondent by way of costs the sum of $13,110 and the second respondent by way of costs the sum of $10,800. The appellants’ liability is joint and several.
D        With respect to costs in this court, the respondents must pay the appellants costs for a standard appeal on a band A basis, reduced by a third, plus usual disbursements. The respondents’ liability is joint and several.

REASONS OF THE COURT
(Given by Chambers J)
A costs appeal
[1] This is the third time these parties have been before this court. This time Worldwide NZ LLC and James Gosney are the appellants. They appeal against a costs judgment made by Hugh Williams J on 27 August last year: Worldwide NZ LLC v QPAM Limited HC AK CIV 2006-404-1827. That costs judgment fixed costs in respect of the following interlocutory matters:
(a)An unsuccessful application for an interlocutory injunction by Worldwide against QPAM Limited, the first respondent, and Jacobsen Venue Management New Zealand Limited, the second respondent, the judgment on which was delivered by Hugh Williams J on 30 May 2006 (“the 30 May judgment”);
(b)An unsuccessful application for stay of execution pending appeal, again brought by Worldwide, the judgment on which was delivered by Hugh Williams J on 26 May 2006 (“the 26 May judgment”);
(c)Two interlocutory appearances before Frater J.

[2]       The real dispute before us relates to the orders for costs made in respect of the 26 May judgment and the 30 May judgment. The issue concerning the appearances before Frater J is trifling. We deal with that briefly at the end of these reasons.
[3]       In essence, Hugh Williams J ordered Worldwide to pay the respondents costs in respect of the 26 May judgment and the 30 May judgment on a 2B basis X 3. Mr Fisher, for the appellants, contends that Hugh Williams J’s costs decision was unprincipled and plainly wrong. He also contends that the judge took into account irrelevant considerations in reaching that decision.
[4]       We begin by setting out the relevant facts. We then set out the costs as fixed by the judge flowing from the 30 May judgment, the breakdown of those costs, the judge’s reasons for increased costs, and our analysis of those reasons. We then do the same exercise with respect to the costs order flowing from the 26 May judgment. Finally, and briefly,…

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.

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Details

Case: [2009] NZCA 226
Decision Date: 2 June 2009

CaseChat Overview and Summary

This is the third time the parties have appeared before the court in this matter. The appellants, Worldwide NZ LLC and James Gosney, are appealing a costs judgment made by Hugh Williams J. That judgment fixed costs in respect of the following interlocutory matters: (a) An unsuccessful application for an interlocutory injunction by Worldwide against QPAM Limited and Jacobsen Venue Management New Zealand Limited; (b) An unsuccessful application for a stay of execution pending appeal; and (c) Two interlocutory appearances before Frater J. The real dispute before the Court of Appeal relates to the orders for costs made in respect of the interlocutory injunction and the stay of execution. The issue concerning the appearances before Frater J is trifling. The Court of Appeal found that the costs decision made by Hugh Williams J was unprincipled and plainly wrong, and that the judge took into account irrelevant considerations in reaching that decision. The Court of Appeal quashed the award of costs made on 27 August last year and made the following orders: The appellants must pay QPAM costs of $13,110, made up thus: (a) The 30 May judgment $9,440; (b) The 26 May judgment $2,000; (c) The appearances before Frater J $1,600; and (d) Agreed disbursements $70. The appellants must pay Jacobsen the sum of $10,800, made up thus: (a) The 30 May judgment $8,800; and (b) The 26 May judgment $2,000. The appellants are entitled to costs on the appeal and the Court of Appeal awarded costs for a standard appeal on a band A basis, reduced by a third.

Orders