PHILPOTT & ORS v NOBLE INVESTMENTS LTD [2015] NZCA 496

PHILPOTT & ORS v NOBLE INVESTMENTS LTD [2015] NZCA 496 [21 October 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA274/2013[2015] NZCA 496BETWEEN SHAYNE PHILPOTT, NEW ZEALANDTRUSTEE SERVICES LIMITED, COLINPETER STOKES, FAY EUNICERICHARDSON, BURNSIDE TRUSTEESLIMITED AND GREGORY ROBERTSMITHAppellantsAND NOBLE INVESTMENTS LIMITEDRespondentCourt: Ellen France P, Stevens and Winkelmann JJCounsel: W J Palmer and S A Brookes for AppellantsP B McMenamin for RespondentJudgment:(On the papers)21 October 2015 at 3 pmJUDGMENT OF THE COURTApplication for further orders as to costs declined.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Judgment in this Court on two appeals, heard together along with a cross-appeal, was delivered on 30 July 2015.1 The appeals were allowed, NobleInvestment Ltd (Noble)'s cross-appeal was dismissed and Noble was ordered to pay one set of costs for a standard appeal on a band A basis together with usual1 Philpott v Noble Investments Ltd [2015] NZCA 342.disbursements. Notwithstanding the terms of that order, the appellants now seek further orders of the Court on the issue of costs. We address each in turn.[2] Clarification is sought as to whether the order permits a claim for costs for commencement of each of the appeals given that each appeal was commenced in a different way. It would be inconsistent with the order contained in the judgment of 30 July 2015 to allow costs for the commencement of two appeals. We clarify that the appellants are entitled to one set of costs for commencement of an appeal as of right, that clarification needed because one appeal was commenced as of right, and the appellants required leave to commence the other.[3] The appellants seek certification for second counsel. As this was a standard appeal the assistance of a second counsel was not justified. We decline to so certify.[4] The appellants seek costs for applications for leave to appeal in respect of the first High Court judgment dated 28 June 20122 and for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005. The appellants submit that therespondent's opposition to these applications was unreasonable because the delay was occasioned by the need to await the further directions of the High Court in a subsequent judgment before commencing the appeal.3[5] We do not characterise the opposition as unreasonable. The appellants could have commenced their appeal in time but instead waited to see if they would achieve a more acceptable outcome in the later judgment.[6] In the second appeal there were two applications for extension of time under r 43, and the appellants seek costs in relation to them. They say that the applicationswere made for reasons of efficiency with a view to delaying the appellants'obligations to apply for a hearing and file the case on appeal in one appeal while their application for leave to appeal in the other was heard. The applications were made to allow both appeals to be consolidated or run together.2 Philpott v Noble Investments Ltd [2012] NZHC 1431.3 The subsequent judgment of the High Court was Philpott v Noble Investments Ltd [2013] NZHC 400.[7] The appellants are not entitled to costs in relation to these applications.Again, the need for the applications arose from the appellants' delay in commencingthe first appeal.[8] The appellants claim costs for Noble's cross-appeal. Such an order would be inconsistent with the existing terms of the costs order, and, in any case, the cross-appeal added little in the way of additional work for the appellants as it was narrowly focused on the terms of the contract.[9] Finally, the appellants provide a table of disbursements. We leave to the Registry the setting of the appropriate disbursements. In terms of the findings set out above, we note the filing fees for applications for leave to appeal and to extend time are not recoverable as disbursements.Result[10] The application for further orders as to costs is declined.Solicitors:Buddle Findlay, Christchurch for AppellantsK J McMenamin & Sons, Christchurch for Respondent