Levin v Rastkar [2011] NZCA 399 (19 August 2011)

Last Updated: 23 August 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA755/2009 [2011] NZCA 399

BETWEEN HENRY DAVID LEVIN AND BARRY PHILLIP JORDAN Appellants

AND SOMBOUN RASTKAR Respondent

Hearing: 17 November 2010

Court: Chambers, MacKenzie and Simon France JJ

Counsel: T J Cooley and M L Broad for Appellants R A A Weir for Respondent

Judgment: 19 August 2011 at 12 pm

JUDGMENT OF THE COURT

1. The appellant’s application to recall the judgment of 23 May 2011 ([2011] NZCA 210) is granted.
2. Order C is deleted and the following order is substituted:

No order as to costs in this Court. The costs order made in the High Court is quashed and the respondent must repay the costs of $5,920 paid to her by the appellants.

(There are consequential changes to the reasoning on costs in the High Court.)

100. The respondent must pay the appellant:

(a) costs of $1,000 with respect to this application; and

(b) disbursements namely $920 filing fee on the recall application.
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REASONS OF THE COURT

(Given by Chambers J)

[1] On 23 May this year, we delivered a decision in this proceeding.[1] Henry Levin and Barry Jordan, the liquidators of Western Clothing Limited, were partly successful in their appeal against the High Court judgment.[2] Because honours were shared, we considered that the appropriate order so far as costs in this Court were concerned is that costs should lie where they fall.
[2] As for costs in the High Court, we said this:

[58] ... The High Court judgment did not fix costs in that court. We express the view that costs in that court should also lie where they fall.

[3] What we did not realise was that, after the parties received the High Court judgment, which gave a preliminary indication as to how costs should be dealt with, the liquidators and Somboun Rastkar, the defendant in the High Court and the respondent in this Court, agreed costs. They agreed the liquidators would pay Ms Rastkar costs in the sum of $5,920. The liquidators paid that sum.
[4] Following the release of our judgment, Mr Cooley, for the liquidators, asked Ms Rastkar to repay the costs the liquidators had paid to her, it being clear that we thought costs in the High Court should lie where they fall. Ms Rastkar refused to repay. Mr Cooley then sought from Mr Weir, for Ms Rastkar, consent to recall of our judgment to provide for an order by consent that Ms Rastkar repay the High Court costs. Ms Rastkar refused to give her consent to such recall.
[5] Mr Cooley then applied for a recall, on the basis it was obvious that we had proceeded on a mistaken assumption that no order to costs had yet been made with respect to the High Court proceeding. Ms Rastkar opposed the application. By consent, we dealt with the application on the papers.
[6] We have no doubt at all that the application must be granted. It is clear from our judgment that we were labouring under a mistaken impression as to costs in the High Court. We made it abundantly clear that we considered costs in the High Court should lie where they fell. Ms Rastkar must have realised that, had we appreciated the parties had agreed costs in her favour based on her total success in the High Court, we would have quashed that High Court order and ordered her to repay the costs she had received.
[7] For these reasons, the liquidator’s application is granted and we now make the order we should have made when delivering our earlier decision. We also retract [58] of the reasons for judgment and, in its place, substitute two new paragraphs ([58] and [59]) in the reasons supporting the reissued judgment.
[8] We consider Ms Rastkar’s opposition to the recall application quite unreasonable and opportunistic. She has needlessly caused the liquidators extra expense in her attempt to hold on to what, following our decision, was a windfall. In those circumstances, it is proper that she should have to pay costs to the liquidators on the recall application. We fix those costs at $1,000. In addition, Ms Rastkar must reimburse the liquidators for the filing fee on the recall application ($920).

Solicitors:
Kensington Swan, Auckland, for the Appellant
DMA Burgess, Auckland for Respondents

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[1] Levin v Rastkar [2011] NZCA 210.
[2] Levin v Rastkar HC Auckland CIV-2008-404-3965, 9 November 2009.