QBE INSURANCE (INTERNATIONAL) LTD v STEWARD MOTORSPORTS EUROPEAN LTD [2014] NZHC 886

QBE INSURANCE (INTERNATIONAL) LTD v STEWARD MOTORSPORTS EUROPEAN LTD [2014] NZHC 886 [2 May 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-003382[2014] NZHC 886UNDER Section 72 of the District Courts Act 1947IN THE MATTER of an appeal against the judgment of theDistrict CourtBETWEEN QBE INSURANCE (INTERNATIONAL)LIMITEDAppellantAND STEWARD MOTORSPORTSEUROPEAN LIMITEDRespondentHearing: 15 April 2014Counsel: SRJ Hamilton for AppellantM Dellow for RespondentJudgment: 2 May 2014COSTS JUDGMENT OF ASHER JThis judgment was delivered by me on Friday, 2 May 2014 at 11.00 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Kennedys, Auckland.Anderson Creagh Lai, Auckland.R Dellow, Auckland.[1] There is a dispute between the appellant and the respondent in relation to thequantum of the 2B costs that have been awarded in favour of the successfulrespondent. The respondent has claimed in respect of two particular items on theappeal, and the appellant contends that they cannot properly be claimed.First item – commencement of response to appeal[2] Schedule 3 of the High Court Rules in setting out the time allocations forgeneral civil proceedings states at item 53: "Commencement of response to appeal orcross-appeal". It sets out various time allocations for the various scales that apply tothis item, the relevant period for scale B being 0.5 days.[3] There is no actual document provided for in the rules that is a"commencement of response to appeal". There was no cross-appeal.[4] The successful respondent in claiming for this item submitted that itsallowance cannot turn on the filing of a particular document. It is accepted that no"commencement of response to appeal" was filed but it is submitted that this is anitem that applies whenever a respondent receives a notice of appeal.[5] The appellant on the other hand submitted that the absence of the filing of any such document is fatal and the amount cannot be claimed.[6] If the appellant is correct, given the absence of any "commencement of response" document, item 53 would be meaningless and unnecessary. It could neverapply as there is no such document. This leads me to the conclusion that what mustbe intended by the rule is the cost of perusing and assessing the notice of appeal andany points on appeal, understanding them and initiating the response process.[7] This view is supported by the historical wording of then-item 13 in the HighCourt Rules 1985 relating to the "Commencement of appeal or review". Item 13 explicitly provided that this step included "assessing the original decision, notingappealable or reviewable points, and filing and serving notice of appeal and points ofappeal or notice of application". While the High Court Rules 1985 as originallyenacted did not provide an allocation for commencing a response to the appeal orcross-appeal (which was only included as from 14 June 2012), I consider that the explanation in item 13 of what the commencement of an appeal involves applies equally to what the commencement of a response involves, obviously with the exception of the need to file and serve a notice of appeal.1 On this analysis, item 53 of the existing High Court Rules which relates for the commencement of a response to an appeal or cross-appeal provides for the time taken in assessing the original decision, assessing the notice of appeal and considering any points of appeal.[8] I appreciate that there are separate items for the case management of theappeal (item 54) and the preparation of written submissions (item 56), butnevertheless I take the view that item 53 covers a different area of work, being theinitial assessment process.[9] I therefore uphold that particular items of the costs claimed.Second item – preparation of case on appeal[10] The argument in relation to this item is similar to that which relates to item 53. Item 55 reads: "Preparation of case on appeal", and there is an allocation of oneday on a scale B appeal.[11] The situation can be contrasted with the position in relation to the commonbundle for a trial, where there are separate items for the plaintiff's preparation of thecommon bundle (item 31) and the defendant's preparation of the common bundle(item 32).[12] I interpret item 55 as applying only to the actual task of preparing the formalcase on appeal.2 That is usually the task of the appellant only. In other words, if theusual situation applies where the preparation of the case on appeal is only carried outby the appellant, and there is no involvement of the respondent or involvement is1 In White v Rodney District Council HC Auckland CIV-2009-404-1880 and 2735, 12 March2010, Woodhouse J pointed out that there was no "respondent's equivalent of commencement of appeal" which would involve reading the original decision, considering a notice of appeal andthe points raised, and taking the appropriate steps.2 See Perkins v Purea [2010] NZCA, (2010) 19 PRNZ 918 (CA) at [5] where the Court of Appeal considered that this item in the Court of Appeal (Civil) Rules 2005 related to preparing the formal case on appeal.minimal, the respondent cannot claim under item 55. If, however, as can be sometimes the case when the respondent is the Crown, the Crown prepared the case on appeal then the Crown might well be able to claim it. Equally if there was a situation where as a matter of fact there was a mutual preparation of the case on appeal, then it might well apply to both sides.[13] Here, however, it would appear that the usual situation has applied, and theappellant has been solely responsible for the case on appeal. I take the viewtherefore that the respondent cannot claim for this work as it has not done it. Itherefore disallow the claim under item 55.[14] This will mean as a matter of practice in relation to the judgment that therespondent is awarded costs of $12,139.00 and disbursements of $100.80 as set outin the table below:Item: Step: DaysAllocated:Amount:53 Commencement of response to appeal 0.5 $99511 Filing memorandum for first management conference0.4 $79613 Appearance at first case management conference0.3 $59711 Filing memorandum for second management conference0.4 $79613 Appearance at second case management conference0.3 $59756 Preparation of written submissions 3 $5,97057 Appearance at hearing 1 $1,99029 Sealing Judgment 0.2 $398Total 2B Costs 6.1 $12,139DisbursementsCopying/printing $50.80Sealing fee $50.00Total disbursements $100.80..Asher J