Peter James Taylor failed in his High Court income protection claim against NZ life insurer Asteron Life where the High Court upheld Asteron Life's counterclaim for repayment of sums paid under the policy to Mr. Taylor. Mr Taylor has lodged an appeal with the Court of Appeal. He sought a stay of execution of amongst other things the costs award against him pending determination of that appeal. The Court of Appeal has dismissed that application: Taylor v Asteron Life Limited [2019] NZCA 683 (20 December 2019).

This decision serves as a general reminder that an appellate court will not generally stay a costs award. The issue of costs sits as a a secondary consideration because it is incidental to the conduct of civil litigation. It does not have the same quality as a state of affairs where if a lower court decision is not stayed the substantive appeal becomes meaningless (or to use a word not used outside of legal practice: "nugatory"). This is so even where the appellant faces bankruptcy as a result of enforcement of the costs award. It is open to the Official Assignee to pursue the appeal if it has merit.

Steve Keall
Barrister
27 December 2019

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