SKP INCORPORATED v AUCKLAND COUNCIL [2021] NZCA 5
The Court held that omission by respondents to seek costs in their written submissions did not preclude a later application, the Court was not functus officio, and there was no justification for two sets of costs; accordingly the applicant must pay one set of costs in the amount of $3,346 to the respondents.
Source-derived case information.
- Citation
- [2021] NZCA 5
- Parties
- Applicant: SKP Incorporated; First Respondent: Auckland Council; Second Respondent: Kennedy Point Boatharbour Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 5 February 2021
- Procedural Posture
- Application for Leave to Bring Second Appeal / Costs Determination on Refusal of Leave
- Outcome
- Applicant ordered to pay respondents one set of costs of $3,346
- Legal Topics
- Leave to Appeal, Costs Awards, Functus Officio, Court of Appeal Rules
Source-derived case record
Summary, issues, holding and outcome
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Parties
SKP Incorporated
Applicant
Auckland Council
First Respondent
Kennedy Point Boatharbour Limited
Second Respondent
Procedural Posture
Application for Leave to Bring Second Appeal / Costs Determination on Refusal of Leave
Legal Issues
- 1 Whether the respondents could seek costs despite not having sought them in written submissions
- 2 Whether the Court was functus officio and therefore unable to order costs after declining leave
- 3 Whether two sets of costs were justified given the participation of two respondents
Ratio Decidendi
The Court held that omission by respondents to seek costs in their written submissions did not preclude a later application, the Court was not functus officio, and there was no justification for two sets of costs; accordingly the applicant must pay one set of costs in the amount of $3,346 to the respondents.
Court Disposition
Applicant ordered to pay respondents one set of costs of $3,346
Orders
- Applicant to pay the respondents one set of costs in the amount of $3,346
Full Case Text
Judgment text and source record
1 paragraphs
SKP INCORPORATED v AUCKLAND COUNCIL [2021] NZCA 5 [5 February 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA387/2020[2021] NZCA 5BETWEEN SKP INCORPORATEDApplicantAND AUCKLAND COUNCILFirst RespondentKENNEDY POINT BOATHARBOURLIMITEDSecond RespondentCourt: Brown and Clifford JJCounsel: J D K Gardner-Hopkins for ApplicantM C Allan and R K Smith for First RespondentP F Majurey and V N Morrison-Shaw for Second RespondentJudgment:(On the papers)5 February 2021 at 11.30 amJUDGMENT OF THE COURT(Costs)The applicant is to pay the respondents one set of costs in the amount of $3,346.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] On 2 December 2020 the applicant's request for leave to bring a second appealwas declined in a decision determined on the papers.1 Neither respondent sought an1 SKP Inc v Auckland Council [2020] NZCA 610.order for costs in the written submissions which they filed. However they belatedlydo so now, each seeking an award of costs of $3,346.2[2] The applicant opposes the making of any award of costs because it submits itis reasonable to infer that the Court deliberately declined to order or to reserve costs(in which event the Court is said to be functus officio). In the alternative the applicantcontends only one set of costs should be payable. It further submits there should beno costs awarded in favour of the Council in view of findings made by the MāoriAppellate Court in what are described as related proceedings.[3] Where the Court refuses leave to appeal an applicant will normally be liablefor costs: r 53G(1) of the Court of Appeal (Civil) Rules 2005. The omission of therespondents to seek an order for costs in their submissions does not preclude their nowapplying. Nor does this Court lack jurisdiction to make an order for costs in that event.[4] We do not consider that there are any reasons why the applicant should not paycosts in accordance with the principle stated in r 53A(1)(a). However we are notsatisfied that on the application for leave to bring a second appeal two sets of costs arejustified, notwithstanding the second respondent's submission that it was appropriatefor it to take an active role. One set of costs will suffice.[5] The applicant is to pay the respondents one set of costs in the amount of $3,346.Solicitors:Greenwood Law Ltd, Waiheke Island for ApplicantBrookfields Lawyers, Auckland for First RespondentAtkins Holm Majurey, Auckland for Second Respondent2 $946 for preparation of a memorandum in opposition and $2,390 for preparation of writtensubmissions.