BRAMBLETYE HOLDINGS LTD AND ANOR V KEVIN FRANCIS GOULD CA447/2009

BRAMBLETYE HOLDINGS LTD AND ANOR V KEVIN FRANCIS GOULD CA447/2009 27 September 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA447/2009 [2010] NZCA 448BETWEEN BRAMBLETYE HOLDINGS LIMITED First Appellant AND RICHARD SCOTT PHILLIPS Second Appellant AND KEVIN FRANCIS GOULD Respondent Counsel: R S Phillips for Appellants M Gilbert SC for Respondent Judgment: 27 September 2010 at 3.30 pmJUDGMENT OF ARNOLD J AS TO COSTSA I award the respondent costs of $600. B I direct the Registrar to disburse the $4,740 held as security for costs as follows: (i) $600 to be paid to the respondent's solicitors in payment of the costs award; (ii) $4,140 to be refunded to the appellants' solicitors. REASONS[1] The parties are in dispute about costs on the appellants' abandonment of their appeal. This judgment deals with that outstanding aspect of the appeal.Background[2] The first and second appellants filed the appeal on 28 July 2009. On 24 August 2009 they paid $4,740.00 as security for costs. The appellants then prepared and filed the case on appeal and paid the setting down fee of $2,200.00. Following that, a fixture was made for 28 July 2010 but this was moved to 24 August 2010 to accommodate counsel. [3] On 7 July 2010, the appellants filed a notice of abandonment and sought release of the $4,740.00 paid by way of security for costs. When advised of this, the respondent's solicitors, Gilbert Walker, asked that the funds not be released until the question of costs on the appeal had been resolved. [4] On 15 July 2010 the respondent wrote to the Registrar asking that the funds held as security be paid to his solicitors. On 23 July 2010, Mr Gilbert SC for the respondent filed a submission seeking $1,000 by way of costs on the abandonment. That submission briefly recites the background to the appeal but does not seek to justify the amount sought by reference to the costs actually incurred by the respondent. Mr Phillips opposed the application for costs, on the basis that the respondent had incurred no costs.Discussion[5] An abandonment does not affect the power of the Court to make an order for costs.1 Awards for costs are at the discretion of the Court, subject to certain guiding principles.2 In general, costs follow the event, 3 but must not exceed the costs actually incurred by the party claiming them. 4 Although the Rules provide standard time allowances in relation to various steps on an appeal and for standard recovery rates, they do not make specific provision for abandonments.1 Court of Appeal (Civil) Rules 2005, r 44(3).2 Rules 53 and 53A.3 Rule 53A(a).4 Rule 53A(f).[6] In the present case, I have no information as to the costs actually incurred by the respondent in relation to the abandoned appeal and the Rules do not provide for a standard rate. I accept that the respondent must have incurred some costs in relation to the appeal, for example, in agreeing the case on appeal and discussing possible fixture dates, but I doubt that they were significant. I consider that an allowance for 0.3 days work will be sufficient. The current daily rate applicable for a standard appeal is $1,880, which, multiplied by 0.3, produces a figure of $564. I round this up to $600. I make no award in respect of disbursements as there was no claim for them.Decision[7] Accordingly, the appellants must pay the respondent $600 by way of costs. I direct that the Registrar deduct $600 from the amount held as security for costs and remit it to the respondent's solicitors, with the remainder ($4,140) being refunded to the appellants' solicitors, in each case for the benefit of their respective clients.Solicitors: Phillips Solicitors, Auckland for Appellants Gilbert Walker, Auckland for Respondent