WALLACE & ANOR v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED [2020] NZHC 1618

WALLACE & ANOR v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTYTO ANIMALS INCORPORATED [2020] NZHC 1618 [9 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-101[2020] NZHC 1618UNDER The Animal Welfare Act 1999BETWEEN JANINE ANN WALLACE ANDBARBARA GLOVERAppellantsAND THE ROYAL NEW ZEALAND SOCIETYFOR THE PREVENTION OF CRUELTYTO ANIMALS INCORPORATEDRespondentOn the papers: At AucklandJudgment: 9 July 2020JUDGMENT OF POWELL J[Costs]This judgment was delivered by me on 9 July 2020 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] In a Minute dated 28 April 2020 I recorded the appeal brought by theappellants, Janine Wallace and Barbara Glover, had been deemed to have beenabandoned on account of their failure to comply with an unless order ordering thepayment of security for costs. I indicated that should the respondent seek costs thiswould be addressed following the filing of memoranda.[2] Following the issue of that Minute, the respondent has not only sought costs,but also purported to file a "notice amending the respondent's name" pursuant to r4.54 of the High Court Rules 2016. The latter notice seeks to amend the respondent'sname from 'The Royal Society for the Prevention of Cruelty to Animals Auckland' to'The Royal New Zealand Society for the Prevention of Cruelty to AnimalsIncorporated'. Concerns arose as to the validity of this notice and the respondent hassince filed supplementary information to ameliorate these concerns.1[3] The appellants oppose any amendment to the respondent's name (submittingthe respondent's name has in fact been correctly identified), and any award of costsarising from the appeal. I now address both these issues in turn.Is it appropriate to amend the respondent's name?[4] Rule 4.54 provides that "a party's name that is incorrectly stated in pleadings may be amended, without an application to the court, by a notice signed by theparty and filed and served on all other parties". This rule is aimed at ensuring partiesare referred to correctly, rather than providing a mechanism for replacing a party that1 The validity of the notice turns on whether the notice was signed by somebody with the relevantauthority, as r 4.54 requires such notice to be signed by the party. In this case the notice wassigned by Laurie Davis, an animal welfare inspector, and the appellants questioned whether shehad the requisite authority to sign the notice as her connection to, or role within the respondentbody was unclear. In response the respondent filed a copy of Ms Davis' identification andconfirmation of her appointment as an animal welfare inspector. However, as noted in myminute dated 23 June 2020, this supplementary information did little to clarify Ms Davis'position and the basis on which she is said to have authority to sign the notice. As a result, Idirected the respondent to file appropriate confirmation of Ms Davis' authority or a notice fromsomeone with the requisite confirmed authority. The respondent elected to file the former,comprising a letter from the CEO of the Royal New Zealand Society for the Protection of Crueltyto Animals Incorporated confirming that Ms Davis is an employee and that she was authorisedto sign the notice amending the respondent's name in this matter. The letter clearly supports thatMs Davis did have authority to sign the notice filed by the respondent and removes any concernsas to the validity of the notice.has been incorrectly joined to a proceeding.2 The authorities are clear that where areasonable person reading the documents would recognise the identity of the party,despite the party being incorrectly named, it will be a case of misnomer andamendment will be appropriate. Where that is not the case substitution of the partywill be required.3What happened in this case?[5] In the District Court, Kevin Plowright, an inspector appointed under theAnimal Welfare Act 1999 ("the Act"), sought orders in the name of the 'Royal Societyfor the Prevention of Cruelty to Animals Auckland (SPCA Auckland)' pursuant tos 136A of the Act, ultimately granted by Judge Blackie.4[6] Ms Wallace and Ms Glover appealed. The first ground of appeal was that theRoyal Society for the Prevention of Cruelty to Animals Auckland (SPCA Auckland)was a fictitious organisation and should not have obtained s 136A orders in its favour.In discussions with the parties at the initial case management conference, it becameevident this matter had been raised before Judge Blackie, who was advised that thecorrect name of the respondent was in fact The Royal New Zealand Society for thePrevention of Cruelty to Animals Incorporated. To this end Judge Blackie wasprovided a copy of the certificate of incorporation for The Royal New Zealand Societyfor the Prevention of Cruelty to Animals Incorporated and counsel also drewHis Honour's attention to r 1.12 of the District Court Rules 2014, which allowedamendment of the respondent's name in the same manner as r 4.54 of the High CourtRules. The sequence of events was recorded in the transcript to the District Courthearing. However, despite His Honour being aware of the existence of the issue nochange was made to the intituling of the proceeding. The amendment was notdiscussed in Judge Blackie's judgment and no order under District Court Rule 1.12was made.2 Todd Energy Ltd v Transpower NZ Ltd (2000) 15 PRNZ 26.3 Davies v Elsby Brothers Ltd [1961] I WLR 170 cited in Registered Securities Ltd (in liq) v JensenDavies & Co Ltd [1999] 2 NZLR 686 (CA).4 Royal Society for the Prevention of Cruelty to Animals Auckland v Wallace and Glover [2019]NZDC 24251.[7] Given this position I directed the respondent to formally file a memorandumadvising the Court its correct name.5 This confirmation was provided in amemorandum dated 25 February 2020, identifying the correct name of the respondentas The Royal New Zealand Society for the Prevention of Cruelty to AnimalsIncorporated, attaching the certificate of incorporation and the District Courttranscript. Although the respondent's memorandum advised a notice formallyamending its name would be filed within a week, no such notice was filed within thattime frame. Notice was in fact given on 29 April 2020, after the appeal had beendeemed to have been abandoned.Discussion - is the respondent entitled to change its name pursuant to r 4.54?[8] In this case there can be no doubt the respondent had incorrectly identifieditself as the 'Royal Society for the Prevention of Cruelty to Animals Auckland (SPCAAuckland)'. This name does not reflect an extant legal entity but instead appears tohave been an amalgamation of two legitimate but distinct legal entities, being 'TheRoyal New Zealand Society for the Prevention of Cruelty to Animals New ZealandIncorporated' and 'The Society for the Prevention of Cruelty to Animals AucklandIncorporated'.[9] On the face of it therefore this appears to be a classic case of a misnomer.Contrary to the appellants' submissions, this was not a case where the wrong legalentity had been specified, which would have been the case if the respondent had beendescribed throughout the proceedings as The Society for the Prevention of Cruelty toAnimals Auckland Incorporated. Given the nature of the error it is clear that therespondent was able to give notice to correctly reflect its true name. The complicatingfactor in this case is the fact that there are two entities with similar names. Theappellants' complaint is less about whether the respondent should be entitled to changeits name, but which of those entities should be named, a contention that underpins theappellants' most recent submission that the respondent is already correctly named asThe Society for the Prevention of Cruelty to Animals Auckland Incorporated. As thepreceding paragraphs have shown this was not in fact the case and it is ultimately for5 See Minute of Powell J dated 19 February 2020.the respondent to confirm which entity was the correct one for the purposes of theproceedings.[10] Given this position, the respondent was, as it was in the District Court, entitledto give notice of its correct name at any time up until final disposal of the appeal –which in this case includes up until the costs are determined following the deemedabandonment of the appeal.[11] The respondent's name was therefore changed to the Royal New ZealandSociety for the Prevention of Cruelty to Animals Incorporated from the time noticewas given by the respondent.Costs[12] The respondent has filed an application seeking their actual costs, totalling$4,580 (inclusive of GST), this being less than the appropriate 2B scale costs due tothe respondent invoicing at significantly less than ordinary commercial rates. Theapplication for costs is opposed by the appellants.[13] As noted above, the appellants oppose an award of costs on the basis therespondent (as initially identified) is a fictitious organisation and therefore has no legalstanding to seek costs. It is for the reasons set out above clear that the respondent isan incorporated body with standing to apply for costs, but which had been incorrectlynamed in the proceedings, and as a result the appellants' opposition to an award ofcosts to a successful party cannot succeed.[14] Rather than scale costs, Mr Radich, on behalf of the respondent, submits it isappropriate to allow recovery of actual costs given they are less than scale costscalculated on a 2B basis. In the circumstances I agree that recovery of actual costs isappropriate. However, the sum sought includes GST. Where a party is GST registered,like the respondent, it is not appropriate to include GST in an award of costs as theparty will already be able to recover GST, and to allow its recovery as part of the cost'saward would lead to double recovery.66 New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016)27 NZTC 22-058 at [13].[15] On that basis I order that the appellants pay costs in the sum of $3,983.00, thisbeing the respondent's actual costs exclusive of GST.Decision[16] The respondent's name in regard to this proceeding is to be amended to theRoyal New Zealand Society for the Prevention of Cruelty to Animals Incorporated.[17] The appellants are liable to pay costs to the respondent in the sum of $3,983.00._______________________________Powell J