BALLANTYNE TRUSTEES LIMITED & ORS v PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LIMITED [2017] NZCA 323
The Court declined to award indemnity costs because appellants' conduct, though unsatisfactory, did not meet the threshold for indemnity; however a 20% uplift on Band B scale costs was warranted because the appellants failed to accept a settlement offer, resulting in costs of $7,225.20 to be paid jointly and...
Source-derived case information.
- Citation
- [2017] NZCA 323
- Parties
- Appellant: BALLANTYNE TRUSTEES LIMITED; Appellant: AVERILL NOELINE HEAD; Appellant: BRUCE RAYMOND HEAD; Appellant: CALMWATER ENTERPRISES PTY LIMITED; Appellant: SENG BOU KEUNG AS TRUSTEE OF THE GBR TRUST; First Respondent: PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LIMITED; Second Respondent: DAVID D CRICHTON; Second Respondent: KIERAN AHORNE
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 27 July 2017
- Procedural Posture
- Court of Appeal Civil Appeal / Costs Determination Following Abandonment of Appeals (on the Papers)
- Outcome
- Costs awarded to second respondents; appellants jointly and severally liable for costs
- Legal Topics
- Costs Awards, Indemnity Costs, Scale Costs, Settlement Offers, Abandonment of Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
BALLANTYNE TRUSTEES LIMITED
Appellant
AVERILL NOELINE HEAD
Appellant
BRUCE RAYMOND HEAD
Appellant
CALMWATER ENTERPRISES PTY LIMITED
Appellant
SENG BOU KEUNG AS TRUSTEE OF THE GBR TRUST
Appellant
PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LIMITED
First Respondent
DAVID D CRICHTON
Second Respondent
KIERAN AHORNE
Second Respondent
Procedural Posture
Court of Appeal Civil Appeal / Costs Determination Following Abandonment of Appeals (on the Papers)
Legal Issues
- 1 Whether indemnity costs under r 53E(3)(a) were warranted
- 2 Whether scale costs with an uplift under r 53E(2)(b)(iv) were justified due to failure to accept settlement
- 3 Liability for costs following abandonment of appeals
Ratio Decidendi
The Court declined to award indemnity costs because appellants' conduct, though unsatisfactory, did not meet the threshold for indemnity; however a 20% uplift on Band B scale costs was warranted because the appellants failed to accept a settlement offer, resulting in costs of $7,225.20 to be paid jointly and severally by the appellants to the second respondents.
Court Disposition
Costs awarded to second respondents; appellants jointly and severally liable for costs
Orders
- Appellants jointly and severally liable to pay second respondents costs in the sum of $7,225.20
Full Case Text
Judgment text and source record
1 paragraphs
BALLANTYNE TRUSTEES LIMITED & ORS v PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LIMITED [2017] NZCA 323 [27 July 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA101/2017CA545/2016CA546/2016[2017] NZCA 323BETWEEN BALLANTYNE TRUSTEES LIMITED,AVERILL NOELINE HEAD, BRUCERAYMOND HEAD, CALMWATERENTERPRISES PTY LIMITED ANDSENG BOU KEUNG AS TRUSTEE OFTHE GBR TRUSTAppellantsAND PAPPRILL HADFIELD & ALDOUSSOLICITORS NOMINEE COMPANYLIMITEDFirst RespondentDAVID D CRICHTON AND KIERAN AHORNESecond RespondentsCounsel: J W A Johnson and J I Taylor for AppellantsM E Parker for Second RespondentsJudgment:(On the papers)27 July 2017 at 11.30 amJUDGMENT OF BROWN JThe appellants are jointly and severally liable to pay the second respondents costs in the sum of $7,225.20.____________________________________________________________________REASONS[1] At a telephone conference on 12 May 2017 Mr Johnson for the appellants advised that he had instructions to abandon the three matters CA545/2016, CA546/2016 and CA101/2017. In the event that costs were not able to be agreed I directed that the second respondents were to file a costs memorandum by 2 June 2017 and the appellants were to file a memorandum in response by 16 June 2017.[2] The second respondents duly filed their memorandum. The appellants did not.[3] The second respondents submitted a scale costs calculation on a Band B basis for the three matters in the sum of $6,021.00. I accept their submission that, while only at an early stage, the three appeals required a significant amount of work.[4] The second respondents seek costs on the three matters on alternative bases:(a) first, on an indemnity basis under r 53E(3)(a) of the Court of Appeal (Civil) Rules 2005, in the sum of $7,803.00; and(b) secondly, scale costs as above but with an increase pursuant to r 53E(2)(b)(iv) of the Court of Appeal (Civil) Rules, in the sum of $7,225.20.[5] In support of the indemnity costs claim the second respondents contend that the appellants continued the appeals vexatiously, frivolously, improperly andunnecessarily, particularly in the context of the appellants' continued failures in theHigh Court proceedings which have proceeded over a number of years.[6] While I agree that the appellants' conduct of the litigation has been less thansatisfactory, I do not consider that this is a case that warrants an award of costs on an indemnity basis. However, the relatively modest increase of 20 per cent upon scale costs is amply justified due to the failure of the appellants to accept an offer to settle the appeals. Costs are awarded in the sum of $7,225.20.[7] The appellants are jointly and severally liable to pay the second respondents costs in the sum of $7,225.20.Solicitors:Wynn Williams, Christchurch for AppellantsDarroch Forrest, Wellington for First RespondentParker Cowan, Queenstown for Second Respondents