RENNIE COX LAWYERS v EA [2022] NZCA 15

RENNIE COX LAWYERS v EA [2022] NZCA 15 [14 February 2022]NOTE: LOWER COURT ORDERS PROHIBITING PUBLICATION OF THENAME AND IDENTIFYING PARTICULARS OF THE RESPONDENT ANDTHE BARRISTER ENGAGED BY RENNIE COX LAWYERS REMAIN INFORCE. SEE [2019] NZHC 3191.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA302/2020[2022] NZCA 15BETWEEN RENNIE COX LAWYERSAppellantAND EARespondentCourt: Gilbert, Collins and Goddard JJCounsel: S P Bryers for AppellantR J Hollyman QC for RespondentJudgment:(On the papers)14 February 2022 at 3 pmJUDGMENT OF THE COURT[Costs]A The appellant's application for increased costs is declined.B The respondent must pay the appellant costs for a standard appeal on aband A basis and usual disbursements to be fixed by the Registrar.C Costs in the High Court are to be fixed by that Court in accordance withthis judgment.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] In a judgment delivered on 3 December 2021, we allowed Rennie Cox's appealand reinstated with minor variations directions made by the District Court to enableits claim to be determined at a substantive hearing.1 The High Court judgmentappealed from had the effect of bringing Rennie Cox's claim to an end, foreclosingany hearing of the claim on its merits.2 We reserved the question of costs at the requestof Rennie Cox:[33] We would normally have ordered EA to pay costs to Rennie Cox fora standard appeal on a band A basis and usual disbursements. We would alsohave directed that costs in the High Court be fixed by that Court in accordancewith this judgment. However, Mr Bryers asked us to take the unusual step ofreserving the question of costs. We understand this is because Calderbankoffers may be relevant to the assessment of costs. Consequently, we willreserve costs. If the parties are unable to reach agreement, submissions onbehalf of Rennie Cox should be filed within 20 working days of the date ofthis judgment. EA's submissions in response should be filed within10 working days of receipt. Costs will then be determined on the papers.[2] The parties have been unable to reach agreement and have filed submissionsin accordance with the timetable directed in the judgment — in December 2021 onbehalf of Rennie Cox and 25 January 2022 on behalf of EA. Without obtaining leaveto do so, Rennie Cox filed further submissions dated 1 February 2022. EA objectedon the basis that no provision was made for reply submissions in the timetable.However, if the Court decided to have regard to those submissions, EA seeks leave tofile further submissions in response.[3] This case involves a claim for a comparatively modest sum. Costs onthe appeal would normally have been addressed in the submissions filed in advance ofthe appeal hearing and fixed in the judgment. In acceding to Rennie Cox's request toreserve costs pending delivery of the judgment, we made appropriate directions forthe exchange of submissions to address this residual issue. There was no provisionfor reply submissions. No good reason has been shown that could justify a departurefrom those directions and enable a further round of submissions. We have thereforedisregarded the submissions filed on behalf of Rennie Cox dated 1 February 2022.It follows that it is not necessary to allow EA an opportunity to respond further.1 Rennie Cox Lawyers v EA [2021] NZCA 648.2 EA v Rennie Cox Lawyers [2019] NZHC 3191.[4] Rennie Cox seeks increased costs pursuant to r 53E(2)(b)(iv) of the Court ofAppeal (Civil) Rules 2005, contending that EA failed, without reasonable justification,to accept a settlement offer made on 16 September 2020 to dispose of the appeal.The proposal was that EA consent to the appeal being allowed and pay Rennie Cox$22,803.50 in settlement of costs it would otherwise claim in the sum of $41,203.50,calculated as follows:District Court (as originally awarded) $ 3,512.50High Court $11.312.00Court of Appeal (leave application) $ 7,979,00Court of Appeal (substantive appeal) $18,400.00_________Total $41,203.50[5] We are not persuaded that EA had no reasonable justification to decline thisoffer. Acceptance required an almost complete capitulation by EA in circumstanceswhere she had the benefit of a judgment in her favour from the High Court.Her position was by no means hopeless or lacking in merit. Had the High Courtjudgment been upheld, she would have finally been rid of Rennie Cox's claim andentitled to costs in all three courts. Rennie Cox's costs calculation was also open tochallenge. For example, we made no order for costs on the leave application and didnot reserve costs on that application.[6] We have not been persuaded that the offer justifies a departure from the usualapproach to costs, in accordance with the preliminary views expressed in the judgmentand quoted at [1] above.Result[7] The appellant's application for increased costs is declined.[8] The respondent must pay costs to the appellant for a standard appeal on aband A basis and usual disbursements to be fixed by the Registrar.[9] Costs in the High Court are to be fixed by that Court in accordance with thisjudgment.Solicitors:Rennie Cox Lawyers, Auckland for AppellantFriedlander & Co Limited, Auckland for Respondent