PORTS OF AUCKLAND LTD V SOUTHPAC TRUCKS LTD HC AK CIV 2005-404-5868

PORTS OF AUCKLAND LTD V SOUTHPAC TRUCKS LTD HC AK CIV 2005-404-5868 17 April 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-5868BETWEEN PORTS OF AUCKLAND LTD Appellant AND SOUTHPAC TRUCKS LTD Respondent Counsel: F R McLaren for appellant G J Mercer for respondent Judgment: 17 April 2007COSTS JUDGMENT OF ALLAN JIn accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 2.30 pm on Tuesday 17 April 2007Solicitors/Counsel: Fortune Manning, fiona.mclaren@fortunemanning.co.nz Gellert Ivanson, geoff.mercer@resolve.co.nz[1] On 17 October 2006, I delivered a judgment in which I upheld an appeal by Ports of Auckland entered against a decision of the District Court, in which judgment had been entered in favour of Southpac. The issues on the appeal centred primarily upon the proper interpretation of certain provisions in the Carriage of Goods Act 1979. [2] Southpac applied for leave to appeal to the Court of Appeal. That application was heard on 7 February 2007, and on 23 February 2007 I refused the application. Costs on the application were reserved. Counsel were invited to file memoranda if they were unable to agree. Memoranda have been received from counsel for both parties. [3] Schedule 3 to the Rules does not make specific provision for costs on an application for leave to appeal to the Court of Appeal. The appropriate time allocation must therefore be determined by analogy with other allowances in the Schedule: r 48D(1)(b). Counsel are agreed that the application is properly to be treated as analogous to a defended interlocutory application. [4] Counsel for Ports of Auckland contends that, although classified as a category 2 proceeding, this appeal " is close to being a Category 3 proceeding but for present purposes the Respondent accepts that it can be classified as a Category 2 proceeding with the nature and importance of the Application being reflected in the time allocation". [5] Counsel's acceptance of the category 2 classification is proper – once classified for costs purposes a proceeding retains that classification unless it is later formally reclassified. It is necessary for a party seeking reclassification to establish the existence of special circumstances: r 48(2). [6] Counsel for Ports of Auckland seeks a time allocation at the band C level for the preparation of opposition to the application. Band C applies where a comparatively large amount of time is considered reasonable. Beyond contendingthat the nature of the application for leave justifies a band C allocation, counsel offers no supporting detail. [7] Ms McLaren for Southpac Trucks says that the application for leave to appeal involved the application of straight forward legal principles to relatively undisputed facts. I agree. Counsel for Ports of Auckland seeks to distinguish the application for leave from an "ordinary interlocutory application" but, with respect, I see nothing extraordinary about the application in this case. In my view band B is appropriate. [8] At the hearing of the application for leave to appeal, Mr Carruthers appeared with Mr Mercer to oppose. Ports of Auckland seeks certification for second counsel. I am not prepared to accede to that request. This was a relatively straight forward interlocutory application. Ports of Auckland was, of course, entitled to have both senior and junior counsel in attendance, but as Ms McLaren submits, the application was not of such difficulty or importance as to justify certification for second counsel. [9] Counsel are also at odds on the question of whether either party should have an award of costs in respect of the present costs application. In principle, as part of the award a successful party on an application for costs should have an allowance for the costs of the application itself: Beachroad Preservation Society Inc v Whangarei District Court (2001) 16 PRNZ 13. But where each party achieves some measure of success on a defended costs application, the practice of the Court is often to make no order as to costs on the application for costs: Morris Crock Ltd v Cycletread LtdHC AK CIV 2004-404-4764 11 April 2006 [33]. [10] Here, Ms McLaren points out that in her synopsis of submissions on the application for leave to appeal, she indicated that category 2B costs according to scale should prima facie apply in the present case, dependent upon the outcome. The effect of this present ruling is to award Ports of Auckland costs at that level. That being so, Ms McLaren submitted that it would be appropriate to award Southpac Trucks costs in respect of the preparation and filing of costs memoranda, rather than the respondent, because Southpac had formally indicated a position as to costs which accords with this present ruling .[11] I might have been attracted to that course if there were evidence that Southpac Trucks had made a formal offer to the respondent to pay costs at that level, but there is nothing more than the very brief indication in counsel's synopsis. I am not therefore prepared to make an order in the appellant's favour. However, I consider it appropriate simply to direct that costs are to lie where they fall in respect of the preparation and filing of costs memoranda. [12] In the result, Southpac Trucks is directed to pay to Ports of Auckland costs in accordance with Category 2B in the sum of $1,760 calculated as follows:No. Item Time4.13 Preparing papers in opposition 0.6 4.14 Preparation for hearing 0.25 4.15 Hearing 0.25 1.1 day @ $1,600 =$1,760.00C J Allan J