MAITLAND COLIN BOOTH v HEYWARD HOLDINGS LTD (IN LIQUIDATION [2019] NZCA 211 [11 June 2019]

MAITLAND COLIN BOOTH v HEYWARD HOLDINGS LTD (IN LIQUIDATION [2019] NZCA 211[11 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA435/2018[2019] NZCA 211BETWEEN MAITLAND COLIN BOOTHAppellantAND HEYWARD HOLDINGS LIMITED (INLIQUIDATIONRespondentCourt: French, Miller and Lang JJCounsel: D J Ballantyne for AppellantD M Jackson for RespondentJudgment:(On the papers)11 June 2019 at 2.15 pmJUDGMENT OF THE COURTThe appellant must pay the respondent costs on a Band A basis for a standardappeal but reduced by 50 per cent plus usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Heyward Holdings Limited (Heyward) was placed in liquidation by order ofthe High Court on 5 May 2016. On 3 July 2018 Heyward obtained summary judgmentagainst its sole director, Mr Booth, for the sum of $556,940.1 That sum representedadvances the Court found Mr Booth had received from the company prior to31 March 2014.1 Heyward Holdings Ltd (in liq) v Booth [2018] NZHC 1339.[2] Mr Booth appealed against the entry of summary judgment. The appeal wasset down to be heard in this Court on 29 May 2019. Mr Booth applied unsuccessfullyon two occasions for an adjournment of the fixture. He then filed a notice abandoninghis appeal on 28 May 2019. The only remaining issue relates to costs.[3] It is common ground that Mr Booth should pay costs to Heyward given the lateabandonment of his appeal. The issue in dispute relates to the quantum of those costs.The arguments[4] Mr Jackson points out that Heyward was effectively left in limbo during theperiod leading up to the hearing because it did not receive any written submissionsfrom Mr Booth. There was no certainty, however, that he would abandon his appeal.Mr Jackson was therefore required to commence preparing for the hearing withoutknowing the argument Mr Booth would advance.[5] Mr Jackson contends Mr Booth should be required to pay costs equivalent toone-half of those payable for preparation on a Band B basis.2 This represents a costsaward in the sum of $6,690.[6] Mr Ballantyne accepts on Mr Booth's behalf that Heyward's counsel must havecommenced preparing for the hearing of the appeal. He points out, however, thatthree days' preparation equates to the full allowance for preparation for the appeal,including preparation of written submissions, under Band A. He therefore submitsthat costs equivalent to one day's preparation would appropriately reflect the timespent by Mr Jackson in reviewing the case on appeal.Decision[7] We agree that a reduced award of costs is necessary to reflect the fact thatHeyward's counsel was not required to consider Mr Booth's submissions or to preparewritten submissions in response. We agree that an award of costs equivalent toone-half of that which would otherwise be payable for preparation is appropriate.2 Six days are allowed for preparation of an appeal falling within Band B.[8] The appeal plainly falls within Band A rather than Band B because it did notraise any complex issues. We therefore allow costs for a standard appeal on a Band Abasis but with costs payable in relation to preparation reduced by 50 per cent to reflectthe factors to which we have referred.Solicitors:Canterbury Legal Christchurch, for AppellantBrandts-Giesen McCormick, Rangiora for Respondent