NJG HOLDINGS LIMITED V DAVID JAMES OLIPHANT & ANOR AND ANOR CA CA2/07
The appellant withdrew the appeal; the Court dismissed the appeal and declined to remit the matter because the issues would not be remedied by this Court; the successful first respondent is entitled to costs, with a standard award of $3,000 plus usual disbursements unless a memorandum seeking different costs is filed.
Source-derived case information.
- Citation
- openlaw-538cb848_2b59_451c_955b_bf1f08e3c99a.pdf
- Parties
- Appellant: NJG Holdings Limited; First Respondents: David James Oliphant & Anor; Second Respondent: Antony George Lewis McElwee
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 28 August 2007
- Procedural Posture
- Civil Appeal / Hearing and Judgment in Court of Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Relief Against Forfeiture, Costs, Remittal, Withdrawal of Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
NJG Holdings Limited
Appellant
David James Oliphant & Anor
First Respondents
Antony George Lewis McElwee
Second Respondent
Procedural Posture
Civil Appeal / Hearing and Judgment in Court of Appeal
Legal Issues
- 1 Whether relief against forfeiture should be granted in respect of the leased hotel
- 2 Whether the matter should be remitted to the High Court
- 3 Entitlement and quantum of costs following withdrawal of the appeal
Ratio Decidendi
The appellant withdrew the appeal; the Court dismissed the appeal and declined to remit the matter because the issues would not be remedied by this Court; the successful first respondent is entitled to costs, with a standard award of $3,000 plus usual disbursements unless a memorandum seeking different costs is filed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs reserved; in absence of a memorandum first respondent awarded $3,000 plus usual disbursements
Full Case Text
Judgment text and source record
1 paragraphs
NJG HOLDINGS LIMITED V DAVID JAMES OLIPHANT & ANOR AND ANOR CA CA2/07 28 August 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA2/07 [2007] NZCA 369BETWEEN NJG HOLDINGS LIMITED Appellant AND DAVID JAMES OLIPHANT & ANOR First Respondents AND ANTONY GEORGE LEWIS MCELWEE Second Respondent Hearing: 28 August 2007 Court: Robertson, Wild and Fogarty JJ Counsel: G J Thwaite for Appellant T J G Allan and T J P Bowler for First Respondents No appearance for Second Respondent Judgment: 28 August 2007JUDGMENT OF THE COURT A The appeal is dismissed. B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J) [1] This was an appeal against a refusal by Allan J to grant the appellant relief against forfeiture in respect of a hotel at Huntly which was owned by the first respondent and in which he was lessee.[2] In written submissions, Mr Thwaite sought an order that the matter be remitted back to the High Court. [3] Having heard Mr Thwaite outline his case for 15 minutes, and after dialogue with the Bench and a brief adjournment, counsel indicated he had instructions to withdraw the appeal. There was no opposition and the appeal was dismissed. [4] It was apparent that the issues which were of concern to the appellant were not going to be remedied by an appeal before this Court. [5] Mr Allan sought costs. It was accepted that he was entitled to an award. [6] The question arose as to the nature of those costs. The first respondent may file a Memorandum within ten days setting out a claim for costs other than those normally awarded. If such a memorandum is filed, then Mr Thwaites has a similar period to respond. Thereafter the Court will make a decision of quantum. [7] In the absence of a Memorandum, the first respondent will have costs of $3,000 together with usual disbursements.Solicitors: Grove Darlow, Auckland, for First Respondents