MOODIE V STRACHAN COA CA115/2011

MOODIE V STRACHAN COA CA115/2011 1 June 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA115/2011[2011] NZCA 247BETWEEN ROBERT ALEXANDER MOODIEAppellantAND ELIZABETH GRACE STRACHANRespondentAND APN SPECIALIST PUBLICATIONS NZLIMITEDSecond RespondentCounsel: R A Moodie, acting for himselfJ O Upton QC for First RespondentA L Ringwood for Second RespondentJudgment: 1 June 2011 at 4:00 PMJUDGMENT OF CHAMBERS JA The application to review the Registrar's decision fixing security forcosts is dismissed.B The appellant must pay the security ordered by the Registrar in the sum of $5,560 on or before 15 June 2011.REASONS[1] This is an application to review the Registrar's decision fixing security forcosts in the sum of $5,560. Robert Moodie, the appellant, argues that security should have been fixed in the sum of $2,370.[2] In order properly to understand the argument and my reasons for judgment, it is necessary for me to set out, by way of background, what has happened on a related appeal.[3] On 21 May last year, Mallon J delivered a judgment in litigation between Dr Moodie and Elizabeth Strachan.1 Ms Strachan has appealed against part of that judgment under CA380/2010. The Registrar fixed security on that appeal in the sum of $2,370. The Registrar adopted that figure by reducing what she understood to be"the daily recovery rate for category 3 proceedings", namely $4,740, by half. Sheapparently did that on the basis that counsel told her the appeal could be heard in half a day.[4] Although that decision is not before me, I need to record, because of its relevance to what is before me, that the Registrar made two errors in fixing thatsecurity. First, by the time that appeal was filed, "the daily recovery rate for category 3 proceedings" had increased to $2,780 a day, making standard security under r 35(5) of the Court of Appeal (Civil) Rules 2005 $5,560, not $4,470.2Secondly, there was no justification for reducing security on the basis that the appeal might be heard in half a day rather than a day. Generally speaking, costs awarded on a half day hearing are identical to costs awarded on a full day hearing.3 It follows that security for those costs should be the same.[5] Another aspect of the same litigation between Dr Moodie and Ms Strachan resulted in a judgment delivered by Wild J on 26 August last year.4 From this judgment, Dr Moodie has appealed under CA115/2011. Under the Civil Rules, security in the sum of $11,120 was payable. The sum doubles from the standard$5,560 because, on Dr Moodie's appeal, there are two active respondents. Each is entitled to security in this Court.5 Dr Moodie applied for a reduction in security. The Registrar did reduce security to $5,560, by decision dated 13 April 2011. Dr Moodie has now applied for a review of that decision under r 7(2) of the Civil Rules.[6] Mr Upton QC, for Ms Strachan, the first respondent, accepted that Dr Moodie should have to provide security only in the sum of $2,370 for Ms Strachan. That1 Moodie v Strachan HC Wellington CIV-2007-485-2212, 21 May 2010.2 See High Court Amendment Rules 2010, rr 2 and 4 and sch 1.3 Court of Appeal (Civil) Rules 2005 ["Civil Rules"], sch 2, item 13.4 Moodie v Strachan HC Wellington CIV-2007-485-2212, 26 August 2010.5 Civil Rules, r 35(4).after all is the reduced sum Ms Strachan had to pay by way of security in her appeal. Clearly that is appropriate. It may well be that Ms Strachan had to pay too little, as I have indicated, but it would be quite unfair now if Dr Moodie were required to paythe correct amount for Ms Strachan's benefit.[7] Dr Moodie submits that this is all he should have to pay. But that leaves APN Specialist Publications NZ Limited, the second respondent,6 which intends to take anactive part on this appeal (though not on Ms Strachan's), without any security. Mr Ringwood, for APN, submitted his client should have the benefit of normal security ($5,560). So it should. The Registrar should never have reduced security to $5,560, as that leaves only $3,190 available for APN as opposed to its entitlement of $5,560.[8] I have considered whether I should increase the security payable to $7,930 ($2,370 for Ms Strachan and $5,560 for APN). I have decided not to do that as APNhas not itself sought to review the Registrar's decision upwards. Clearly, however, there is no scope for a review downwards, as Dr Moodie has suggested. Rather, heshould consider himself lucky that the Registrar's error has led to him paying lesssecurity than was appropriate.Solicitors:Moodie & Co, Feilding for AppellantRainey Collins, Wellington for First RespondentBell Gully, Auckland for Second Respondent6 APN is wrongly called "the Cross-Respondent" on Dr Moodie's appeal. It is not. It is thesecond respondent on this appeal and should be so called henceforth.