OSBORNE AND OSBORNE v AUCKLAND CITY COUNCIL (NOW AUCKLAND COUNCIL) COA CA841/2011
The application to increase costs was treated as an application to recall the Court's prior judgment and was dismissed because none of the limited grounds for recall identified in Horowhenua County v Nash (No 2) were established and increased costs were not appropriate given that the applicants were entitled to have...
Source-derived case information.
- Citation
- COA CA841/2011
- Parties
- Applicant: John Anthony Osborne; Applicant: Helen Osborne; Respondent: Auckland City Council (now Auckland Council)
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 11 July 2012
- Procedural Posture
- Application to Recall Judgment Arising From Application for Leave to Appeal / Post Judgment Costs Application (on the Papers)
- Outcome
- Application to recall judgment dismissed; application for increased costs dismissed; original costs order of 17 May 2012 remains.
- Legal Topics
- Recall of Judgment, Application for Increased Costs, Leave to Appeal, Limitation Issue
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Anthony Osborne
Applicant
Helen Osborne
Applicant
Auckland City Council (now Auckland Council)
Respondent
Procedural Posture
Application to Recall Judgment Arising From Application for Leave to Appeal / Post Judgment Costs Application (on the Papers)
Legal Issues
- 1 Whether the Court has jurisdiction to consider increased costs without recalling its prior judgment
- 2 Whether increased costs should be awarded given the circumstances of the leave application
- 3 Whether applicants were entitled to have the limitation issue determined by the Court
Ratio Decidendi
The application to increase costs was treated as an application to recall the Court's prior judgment and was dismissed because none of the limited grounds for recall identified in Horowhenua County v Nash (No 2) were established and increased costs were not appropriate given that the applicants were entitled to have the limitation issue determined and the respondent had not sought increased costs at the hearing.
Court Disposition
Application to recall judgment dismissed; application for increased costs dismissed; original costs order of 17 May 2012 remains.
Orders
- Application for recall of the Court's 17 May 2012 judgment dismissed
- Application for increased costs dismissed
Full Case Text
Judgment text and source record
1 paragraphs
OSBORNE AND OSBORNE v AUCKLAND CITY COUNCIL (NOW AUCKLAND COUNCIL) COA CA841/2011 [11 July 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA841/2011[2012] NZCA 302BETWEEN JOHN ANTHONY OSBORNE ANDHELEN OSBORNEApplicantsAND AUCKLAND CITY COUNCIL (NOWAUCKLAND COUNCIL)RespondentCourt: Ellen France, Harrison and White JJCounsel: T J Rainey and J P M Wood for ApplicantsC R Goode for RespondentJudgment: 11 July 2012 at 3.00pm(On the papers)JUDGMENT OF THE COURTThe application for an order for increased costs is treated as an application torecall this Court's judgment of 17 May 2012 and is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by White J)[1] By amended application dated 19 June 2012 the respondent applied for an order for increased costs following the judgment of this Court of 17 May 2012 dismissing the application by the applicants for leave to appeal.1[2] The application for increased costs is opposed by the applicants.1 Osborne v Auckland City Council [2012] NZCA 199.[3] In our judgment of 17 May 2012 we ordered the applicants to pay the respondent its costs for a standard application on a band A basis together with usual disbursements.[4] Having made that order, we would only have jurisdiction to consider the application for increased costs if we were to recall our judgment of 17 May 2012. We therefore treat the application for increased costs as an application to recall our judgment.[5] We are satisfied that none of the situations outlined in Horowhenua County v Nash (No 2)2 justifying the serious step of a court recalling a judgment formally delivered applies here. We are therefore not prepared to do so.[6] Having considered the respondent's application for increased costs, we arenot satisfied that it would have been appropriate in the circumstances of this case to have made such an order. The application for leave involved an important issue of limitation which the applicants were entitled to have determined by this Court.[7] Furthermore, the respondent did not seek an order for increased costs or to be heard on the question of costs at the hearing of the application for leave to appeal on 3 April 2012.[8] The application for increased costs, which we treat as an application for the recall of our judgment of 17 May 2012, is dismissed.Solicitors:Rainey Law, Auckland for ApplicantsHeaney & Co, Auckland for Respondent2 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.