MCBRIDE STREET CARS LIMITED V RAPANA AND ORS HC DUN CIV-2006-412-000053

MCBRIDE STREET CARS LIMITED V RAPANA AND ORS HC DUN CIV-2006-412-000053 13 September 2006IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY CIV-2006-412-000053BETWEEN MCBRIDE STREET CARS LIMITED Appellant AND TUI JOY MARIA RAPANA First Respondent AND THE ATTORNEY-GENERAL (IN RESPECT OF NEW ZEALAND POLICE) Second Respondent AND REILLY'S TOWAGE & SALVAGE 2002 LIMITED Third Respondent Hearing: 13 September 2006 Judgment: 13 September 2006RULING OF HON. JUSTICE JOHN HANSEN IN RESPECT OF COSTS[1] In my reserved decision I indicated that both parties had been partially successful, and my preliminary view was costs would lie where they fell. [2] Notwithstanding that, the appellant has filed a memorandum seeking costs. The first and third respondents also seek costs against the appellant on a category 2B basis. [3] The appellant submitted that as it was entirely successful on its first ground of appeal, it should be entitled to costs. In relation to the third respondent, it was submitted there should be no award of costs because although it was a separate party, its defence was conducted throughout by the first respondent at the cost of the first respondent.[4] However, the first and third respondents submit that they should be entitled to costs. In relation to the first respondent, it is pointed out that Calderbank offers of $5000 and $7500 were forwarded to counsel for the appellant on 2 November 2004 and 16 May 2005 – both of which were rejected. The effect of my judgment and the earlier judgment in relation to the appellant was that the first respondent is liable to the appellant in the total sum of $2000 for damages. The first offer was made some considerable time before hearing, but the increased offer was only just before hearing. [5] However, the ultimate award is such that I am satisfied the $5000 offer made should have been accepted. [6] In Calderbank v Calderbank [1975] 3 All ER 333 at 343, Cairns L J stated: "I have reached the conclusion that that was an offer which in the circumstances of this case the husband ought to have accepted and that, as he persisted in these proceedings and recovered a lump sum of a smaller amount than the value of that house, the right order would be that he should have the costs up to 14 days after 14 August, and thereafter that the wife would have her costs of the proceedings in the Court below." [7] I can see no reason that those principles should not apply in this case. I am, of course, only concerned with the costs of the appeal. Accordingly, there will be costs on the appeal to the first respondent on a 2B basis. [8] I accept that the carriage of the defence of the third respondent has been in the hands of same counsel, but the case against the third respondent has been unsuccessful because of a failure to prove damages. This finding of the judge was upheld on appeal. In my view, I can see no reason costs should not follow the event, provided there is no duplication. [9] Accordingly, there will be costs on the appeal to the third respondent on a 2B basis. [10] Both orders for costs are together with disbursements as fixed by the Registrar.[11] Any questions relating to costs in the District Court should be referred to the trial judge. __________________________________