IBA LIMITED V STANLEY'S NIGHTCLUB LIMITED AND ANOR CA CA265/05

IBA LIMITED V STANLEY'S NIGHTCLUB LIMITED AND ANOR CA CA265/05 12 March 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA265/05 [2007] NZCA 60BETWEEN IBA LIMITED Appellant AND STANLEY'S NIGHTCLUB LIMITED First Respondent AND STANLEY FREDERICK GORDON Second Respondent Court: William Young P, Robertson and Arnold JJ Counsel: I M Hutcheson for Appellant P F Dalkie for Respondents Judgment (On the papers): 12 March 2007 at 2.15 pmJUDGMENT OF THE COURT A We award the appellant costs on a solicitor own client basis in the High Court and in this Court. B We direct that the bills of costs relied on by the appellant be referred to the Auckland District Law Society for revision (exercising such discretions as necessary under s 151 of the Law Practitioners Act). C We reserve leave for the parties to revert to this Court as to final orders. REASONS OF THE COURT(Given by William Young P)[1] This is a sequel to our judgment of 29 November 2006 and should be read with it. [2] The agreement under which the appellant sued and was ultimately successful in this Court gives the appellant a contractual entitlement to solicitor and own client costs. [3] The appellant was awarded solicitor and own client costs in the District Court and the effect of our judgment was, inter alia, to reinstate that award. [4] The appellant now seeks solicitor and own client costs in the High Court and this Court for a total, including GST and disbursements, of $78,171.39. [5] The order sought by the appellant is opposed by the respondents who note that the basis upon which the case was determined in this Court did not feature in the submissions of the appellant. While acknowledging that this is so, we can see no escape from the conclusion that the appellant is contractually entitled to costs on a solicitor and own client basis. On the other hand the respondents are entitled to challenge the quantum of those costs. They seem quite high given that the sum primarily involved in the proceedings was only $40,000 and the award of costs in the District Court was for $36,000. [6] This Court could assess an appropriate figure for costs but the exercise could be more effectively addressed by revision by the Auckland District Law Society under the Law Practitioners Act 1982, see ss 146 and 151. We accordingly direct such revision. We note that if the appellant has received GST input tax credits in relation to the GST component of the costs and disbursements, there can be no double recovery under this award. [7] Accordingly, we (a) award the appellant costs on a solicitor own client basis in the High Court and in this Court but, (b), direct that the bills of costs relied on by the appellant be referred to the Auckland District Law Society for revision (exercising such discretions as necessary under s 151 of the Law Practitioners Act),and (c) to cover the unlikely contingency that further order of this Court is required, we reserve leave to revert to this Court as to final orders.Solicitors: Murdoch Price, Auckland for Appellant Metro Law, Auckland for Respondents