HC TRUSTEES 2010 LIMITED and LESLIE RAYMOND RAWLINGS v TIMARU DISTRICT COUNCIL [2020] NZHC 2965

HC TRUSTEES 2010 LIMITED and LESLIE RAYMOND RAWLINGS v TIMARU DISTRICT COUNCIL[2020] NZHC 2965 [10 November 2020]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECIV-2020-476-000006[2020] NZHC 2965BETWEEN HC TRUSTEES 2010 LIMITED andLESLIE RAYMOND RAWLINGSAppellantsAND TIMARU DISTRICT COUNCILRespondentHearing: On the papersAppearances: T J Jackson and J C Z Loh for AppellantsC A O'Connor for RespondentJudgment: 10 November 2020JUDGMENT OF DUNNINGHAM JRE: COSTSThis judgment was delivered by me on 10 November 2020 at 3.30 pm, pursuantto r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 10 November 2020[1] This appeal was set down for hearing on 10 September 2020 at 10.00 am.However, by notice dated 4 September 2020, the appellant gave notice of its intentionto abandon the appeal. The parties reserved the issue of costs, though indicated theywere in discussions over these.[2] On 7 September 2020, Nation J made timetabling directions for the filing ofcosts memoranda. These required the respondent, if it wished to pursue an applicationfor costs, to file a memorandum by 28 September 2020. Any memorandum in replywas to be filed by the appellant by 12 October 2020, and any reply from therespondent, to be filed by 19 October 2020.[3] On 28 September 2020, the respondent filed a memorandum seeking costscalculated on a 2A basis, for three steps in the proceeding. No response was receivedfrom the appellant in the timeframe directed. A reminder was sent to counsel on15 October 2020. On Monday, 19 October 2020, counsel apologised for notresponding earlier and said he was engaging in discussions with the respondent'scounsel and would file a memorandum shortly. On 20 October 2020, counsel for theappellant advised he was seeking instructions from his client and would update theCourt once that had been done. A further follow-up email was sent on 3 November2020 to which the Court has had no response.[4] At the time of issue of this costs' decision, no further response has beenreceived from the appellant, and it is more than four weeks after the appellant's costssubmissions were due. There has been no application for an extension of time, and itis appropriate, in these circumstances, to finalise the issue of costs, in the absence ofa response from the appellant.[5] As the respondent notes, its rights to costs in relation to an abandoned appealare preserved by r 20.12(2) of the High Court Rules 2016. Mr O'Connor also submits,there is no reason to depart from the general principle, found in r 14.2(1)(a) of theHigh Court Rules, that costs should follow the event of an unsuccessful application,which this appeal is.[6] The respondent seeks the following costs on a 2A basis, calculated inaccordance with the relevant schedules to the High Court Rules:Item Activity Day or Part Day Amount53 Response to appeal 0.3 717.0011 Case management – filing of memorandum 0.2 478.0011 Case management – filing of costsmemorandum0.2 478.00Total $1,673.00[7] The respondent does not seek any disbursements from the appellant.[8] I am satisfied that the amount claimed is appropriate and follows logically fromthe abandonment of the appeal. Accordingly, I order that the appellant pays therespondent $1,673.00 in costs.Solicitors:Quentin Hix Legal Ltd, TimaruGresson Dorman & Co., Timaru