BASF NEW ZEALAND LIMITED v BRIAN ROBERTS (1998) LIMITED [2020] NZCA 662
The Court declined to recall the judgment because there was no error justifying recall, but exercised its discretion to award costs to the respondent for a standard appeal on a band A basis plus usual disbursements and refused certification for second counsel as the appeal was straightforward.
Source-derived case information.
- Citation
- [2020] NZCA 662
- Parties
- Appellant: BASF New Zealand Limited; Respondent: Brian Roberts (1998) Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 18 December 2020
- Procedural Posture
- Appeal / Judgment on the Papers and Subsequent Application to Recall and for Costs
- Outcome
- Application to recall declined; costs awarded to respondent for a standard appeal on a band A basis plus usual disbursements; certification for second counsel refused; no costs for recall application.
- Legal Topics
- Costs, Statutory Demand, Recall of Judgment, Certification for Second Counsel
Source-derived case record
Summary, issues, holding and outcome
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Parties
BASF New Zealand Limited
Appellant
Brian Roberts (1998) Limited
Respondent
Procedural Posture
Appeal / Judgment on the Papers and Subsequent Application to Recall and for Costs
Legal Issues
- 1 Whether the Court should recall its judgment to correct or address costs
- 2 Whether costs should be awarded and at what scale
- 3 Whether certification for second counsel should be granted
Ratio Decidendi
The Court declined to recall the judgment because there was no error justifying recall, but exercised its discretion to award costs to the respondent for a standard appeal on a band A basis plus usual disbursements and refused certification for second counsel as the appeal was straightforward.
Court Disposition
Application to recall declined; costs awarded to respondent for a standard appeal on a band A basis plus usual disbursements; certification for second counsel refused; no costs for recall application.
Orders
- The application for recall is declined.
- There is an order for costs in favour of the respondent for a standard appeal on a band A basis, plus usual disbursements.
Full Case Text
Judgment text and source record
1 paragraphs
BASF NEW ZEALAND LIMITED v BRIAN ROBERTS (1998) LIMITED [2020] NZCA 662 [18 December2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA201/2020[2020] NZCA 662BETWEEN BASF NEW ZEALAND LIMITEDAppellantAND BRIAN ROBERTS (1998) LIMITEDRespondentCourt: Courtney, Woolford and Mander JJCounsel: T B Fitzgerald for AppellantP J Napier for RespondentJudgment:(On the papers)18 December 2020 at 11 amJUDGMENT OF THE COURT[Costs]A The application for recall is declined.B There is an order for costs in favour of the respondent for a standardappeal on a band A basis, plus usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] On 8 December 2020 this Court dismissed the appeal brought by BASF NewZealand Ltd (BASF) against a decision of the High Court setting aside a statutorydemand against the respondent, Brian Roberts (1998) Ltd (BRL).1 BRL did not raisethe issue of costs on the papers, nor in oral submissions. No order was made as to1 BASF New Zealand Ltd v Brian Roberts (1998) Ltd [2020] NZCA 634.costs. BRL has applied for orders recalling the judgment and having it corrected so asto address the issue of costs. BASF opposes that course on the grounds that, since theissue was not raised, there is no error that would justify recall. We agree that there isno basis on which to recall the judgment. However, given that costs are at thediscretion of the Court and generally follow the result, and that the issue was not raisedat the time of the hearing, BRL is not precluded from making an application for costsnow.[2] Both parties have indicated their positions regarding costs in the event that wewere prepared to address the issue. BRL seeks costs for a standard appeal withcertification for second counsel. BASF opposes certification for second counsel. Thiswas a straightforward appeal that does not warrant certifying for second counsel.There is accordingly an order for costs for a standard appeal on a band A basis, plususual disbursements. We make no order for costs in respect of the application forrecall.Solicitors:Bell Gully, Auckland for AppellantKeegan Alexander, Auckland for Respondent