STRACHAN v MOODIE CA380/2010 [2014] NZCA 626
The Court declined to award costs to the self-represented respondent and ordered the $2,370 security paid out to the appellant because the appeal was abandoned after the respondent abandoned a related appeal and a substantial part of the respondent's claimed costs related to an unsuccessful opposition to vacate the...
Source-derived case information.
- Citation
- [2014] NZCA 626
- Parties
- Appellant: Elizabeth Grace Strachan; Respondent: Robert Alexander Moodie; Cross Respondent: APN Specialist Publications NZ Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 18 December 2014
- Procedural Posture
- Appeal / Appeal Filed and Later Abandoned; Security for Costs Paid Into Court and Application for Payment Out
- Outcome
- Sum of $2,370 paid into Court to be paid out to the appellant; no costs order in favour of the respondent.
- Legal Topics
- Security for Costs, Costs Against Litigant in Person, Abandonment of Appeal, Strike Out Applications, Fixture/vacating Hearing Date
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Grace Strachan
Appellant
Robert Alexander Moodie
Respondent
APN Specialist Publications NZ Limited
Cross Respondent
Procedural Posture
Appeal / Appeal Filed and Later Abandoned; Security for Costs Paid Into Court and Application for Payment Out
Legal Issues
- 1 Whether the security for costs paid into Court should be paid out to the appellant following abandonment of the appeal
- 2 Whether a litigant in person is entitled to costs from the security for costs
- 3 Whether costs claimed for opposing vacating a fixture should be recoverable when that opposition was unsuccessful
Ratio Decidendi
The Court declined to award costs to the self-represented respondent and ordered the $2,370 security paid out to the appellant because the appeal was abandoned after the respondent abandoned a related appeal and a substantial part of the respondent's claimed costs related to an unsuccessful opposition to vacate the fixture, justifying the exercise of the Court's discretion against awarding costs to the respondent.
Court Disposition
Sum of $2,370 paid into Court to be paid out to the appellant; no costs order in favour of the respondent.
Orders
- Pay $2,370 to appellant Elizabeth Grace Strachan
- No costs awarded to respondent Robert Alexander Moodie
Full Case Text
Judgment text and source record
1 paragraphs
STRACHAN v MOODIE CA380/2010 [2014] NZCA 626 [18 December 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA380/2010[2014] NZCA 626BETWEEN ELIZABETH GRACE STRACHANAppellantAND ROBERT ALEXANDER MOODIERespondentAPN SPECIALIST PUBLICATIONS NZLIMITEDCross-RespondentCounsel: J O Upton QC for AppellantR A Moodie in PersonJudgment:(On the papers)18 December 2014 at 11.30 amJUDGMENT OF THE COURTThe sum of $2,370 paid into Court as security for costs is to be paid out to the appellant.____________________________________________________________________REASONS[1] On 21 June 2010 the appellant, Ms Strachan, filed an appeal against the judgment of Mallon J in Moodie v Strachan which involved strike out applications by both parties.1[2] On 13 July 2010 Ms Strachan paid $2,370 into Court as security for costs for her appeal.1 Moodie v Strachan HC Wellington CIV-2007-485-2212, 21 May 2010.[3] By minute of Glazebrook J dated 13 April 2010 (in fact 2011) it was directed that the appeal be heard with a related appeal in CA115/2011 Moodie v Strachan.2[4] By notice dated 13 May 2014 Ms Strachan abandoned her appeal on the ground that subsequent decisions of the High Court had effectively rendered it nugatory.[5] On 23 July 2014 the Registry contacted the parties inquiring about payment out of the security for costs.[6] On 29 July 2014 Mr Moodie wrote to the Registrar saying that he proposed to file a memorandum seeking costs against the security for costs held by the Court.[7] By memorandum dated 18 August 2014 Mr Moodie sought costs of $900.[8] By memorandum dated 25 August 2014 Mr Upton QC, senior counsel for Ms Strachan, filed a memorandum submitting that:(a) costs on the appeal (now abandoned) should lie where they fell;(b) no costs order should be made in favour of Mr Moodie as a litigant in person; and(c) Ms Strachan should recover in full the security for costs which she had paid into Court.[9] Mr Upton submitted that Mr Moodie was not entitled to costs as he was representing himself and because, at least in part, the costs claimed related to his memorandum to the Court opposing the Court of Appeal fixture date of 12 March 2011 being vacated which was unsuccessful as the fixture was vacated.[10] By memorandum dated 1 October 2014 Mr Moodie has responded to Mr Upton's memorandum.2 Strachan v Moodie CA380/2010, 13 April 2011 (Minute of Glazebrook J).[11] A practising lawyer who represents himself in litigation may in appropriate circumstances be entitled to an order for costs: Brownie Wills v Shrimpton and R v Meyrick.3 Whether such an order should be made in the discretion of the Court will, however, depend on all the circumstances of the particular case.[12] Here I am satisfied for the following reasons that no order for costs should be made in favour of Mr Moodie:(a) the appeal was abandoned because it became superfluous after Mr Moodie abandoned his related appeal in CA115/2011 Moodie v Strachan; and(b) two of the three hours of time Mr Moodie claims for his $900 relate to the preparation of a memorandum opposing the vacating of the fixture in respect of which Mr Moodie was unsuccessful.[13] I therefore direct that the sum of $2,370 be paid by the Registry to Ms Strachan.Solicitors:Rainey Collins, Wellington for Appellant3 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327; and R v Meyrick [2008] NZCA 45 at [10].