NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
sel involved, or on the costs actually incurred by the party claiming costs. • An award of costs should not exceed the costs incurred by the party claiming costs. • So far as possible, the determination of costs should be predictable and expeditious. In certain circumstances, the Court may make an order increasing costs otherwise payable under the High Court Rules or imposing an award of indemnity costs in favour of a party. This can occur, for example, in the following situations: • the party opposing costs has contributed unneces - sarily to the time or expense of the proceeding or a step in it; or • a party has acted vexatiously, frivolously, improp - erly, or unnecessarily in commencing, continuing or defending a proceeding or a step in it. Equally, the Court may refuse to make an order for costs or may reduce the costs otherwise payable for various reasons. Expert witness costs and other reasonable disburse - ments are usually awarded in full against the unsuc - cessful party. Security for Costs The High Court also has the power to order that a • if it considers that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceedings. Appellants must ordinarily pay security for costs to the relevant Court for appeals to the Court of Appeal or Supreme Court. Costs in Appeals of Commerce Commission Determinations Finally, although outside the scope of private antitrust litigation, it is important to be aware that there are special costs rules that apply to appeals of Commerce Commission determinations (for example, in relation party pay security for costs: • against foreign plaintiffs; or
to clearance and authorisation applications for merg - ers and acquisitions). If the Commerce Commission unsuccessfully opposes an appeal to the High Court, it generally will not be required to pay costs because it appears to protect the public interest. If the Com - merce Commission succeeds in the High Court, but the determination is overturned on second appeal to the Court of Appeal, the Commerce Commission again will generally not be required to pay costs. How - ever, if the Commerce Commission loses in the High Court and then again on second appeal, it will usually be required to pay costs on the second appeal. In all cases in which the Commerce Commission success - fully defends a determination, the unsuccessful appel - lant will usually be required to pay costs. Final decisions of the High Court in private antitrust cases may be appealed to the Court of Appeal as of right, and such appeals are not limited to questions of law. An appeal must be filed within 20 working days after the date of the decision to be appealed, setting out the grounds of appeal. Other High Court decisions, for example appeals of interlocutory decisions, require a prospective appel - lant to firstly obtain leave to appeal. An application for leave to appeal to the Court of Appeal must be made to the High Court within 20 working days after the date of that order or decision. If leave is not granted, an application may be made to the Court of Appeal. Decisions of the Court of Appeal generally may be appealed to the Supreme Court with leave of the lat - ter court. The Supreme Court will only give leave to appeal if it is satisfied that it is necessary in the inter - ests of justice for the Court to hear and determine the proposed appeal, specifically where: • the appeal involves a matter of general or public importance; • a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or 12. Appeals 12.1 Basis of Appeal
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