A v National Standards Committee

[2020] NZHC 1544

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001035

[2020] NZHC 1544

UNDER

the Lawyers and Conveyancers Act 2006

IN THE MATTER

of disciplinary proceedings under Part 7 of the Act

BETWEEN

A

Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing:	On the papers
Judgment:	2 July 2020

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 2 July 2020 at 2.30 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Counsel/Solicitors:

D P H Jones QC, Auckland

Russell Legal Limited, Auckland Meredith Connell, Auckland

A v NATIONAL STANDARDS COMMITTEE - COSTS [2020] NZHC 1544 [2 July 2020]

Background

[1]        The appellant was successful before me in an application to adduce further evidence on appeal.

[2]        On 7 April 2020, Wylie J delivered a costs judgement on the substantive appeal but declined to deal with costs on the interlocutory application I heard, referring the matter to me for determination.

[3]        On 15 May 2020 I delivered my judgment on costs whilst under the impression the respondent had not filed a memorandum on costs and as such did not oppose the costs sought by the appellant. However, it subsequently came to my attention the respondent had indeed filed a memorandum on costs, but it had not been made available to me. As the respondent was entitled to be heard before I made a decision adverse to its interests, in a minute issued later that same day I recalled my decision as to costs.

[4]        I have since received the respondent’s costs memorandum and the appellant’s memorandum in reply and shall proceed to address the determination of costs.

Position of the appellant

[5]        The appellant filed a memorandum seeking costs on the application to adduce further evidence. The memorandum stated that the appellant and the respondent agreed that costs were to be calculated on a 2B basis. The appellant also responsibly acknowledged that the application was successful in relation to three of the five topics dealt with in the appellant’s updating affidavit. The appellant then submitted that success on limited terms is still success, citing as authority Weaver v Auckland Council.1

[6]        The appellant went on to submit that as it was not entirely successful on the application, 2B costs should be discounted by 20 per cent. As calculated by the appellant, costs on a 2B basis came to $5,798.00, less a 20 per cent discount of

1      Weaver v Auckland Council [2017] NZCA 330 at [26].

$1,159.60 which resulted in a total discounted costs amount in favour of the appellant at $4,638.40.

The respondent’s position

[7]        The respondent notes its agreement that the proceeding is correctly categorised as 2B and takes no issue with the items for which the appellant seeks costs. However, it submits that costs should lie where they fall. It does so on the basis that the appellant sought to adduce evidence in two areas, being evidence related to his mental health and evidence related to the valuation of [redacted] (including a summary of the appellant’s evidence before the Tribunal) and succeeded in having the evidence in the first area admitted, but failed in admitting the evidence related to the second area. In these circumstances the respondent says that “honours were even” and “each party’s success offsets the other’s”.

[8]        Alternatively, it submits that the costs claim should be reduced by 70 per cent. Here, the respondent submits there ought to be a 50 per cent reduction to recognise its success in resisting the admission of the valuation evidence and the appellant’s summary of earlier evidence, and gives a further 20 per cent reduction to recognise that the respondent consented to the admission of updating evidence in respect of the appellant’s mental health and abided the admission of Dr Goodwin’s affidavit and report.

Decision

[9]        It is well settled that the party that lost should pay the costs of the party that won. This position is reflected in r 14.2(a) of the High Court Rules and was described by the Supreme Court as the principle that the “loser and only the loser pays”.2 In the application before me the appellant sought to adduce an affidavit of Dr Goodwin and an updating affidavit that traversed five different topics. Leave was granted to adduce Dr Goodwin’s evidence in full and the appellant’s updating affidavit in part. More specifically, the appellant was successful on having admitted three of the five topics

2      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].

of the updating affidavit. On this basis the appellant was successful, although not wholly so.

[10]      The respondent contends that the parties were equally successful on the application as it abided the decision of the court in relation to Dr Goodwin’s evidence, and it succeeded in resisting the admission of evidence in relation to two out of the five topics of the appellant’s updating affidavit. With this in mind, I agree the success of the parties is relatively even. However, where “approximately equal success and failure attended the efforts of both sides”,3 success or failure is better assessed by stepping back and adopting a realistic appraisal of the end result.4 In other words, as noted by the Court of Appeal in Weaver, a judge dealing with costs will not be required to unpick what happened in detail.5

[11]      It is true that the appellant did not succeed on all aspects of the application, yet success in limited terms is still success.6 And stepping back and undertaking a realistic appraisal of the end result, it is clear the appellant was successful. Thus, much like in Weaver there is no proper basis upon which the usual rule that the party who fails should pay costs should not apply. However, as occurred in Weaver, the appellant’s costs should be reduced in accordance with r 14.7(d) as the respondent incurred additional costs in opposing the unsuccessful arguments. Practically, these additional costs were small, and as a result I am satisfied that a reduction of 20 per cent is appropriate.

[12]      The respondent also sought that costs be reduced to acknowledge that it elected to abide the decision of the court in regard to the admission of Dr Goodwin’s evidence, and consented to the admission of five paragraphs of the appellant’s updating affidavit. However, I do not find any such reduction to be appropriate. Hong v Deliu held that the justification for a reduction in costs against a party who abides is based on the principle that the costs incurred would be less than if a party had defended the claim.7 Here, the respondent still opposed the admission of most of the new evidence and the

3      Packing in Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA).

4 At [6].

5      Weaver v Auckland Council [2017] NZCA 330 at [24].

6 At [26].

7      Hong v Deliu [2016] NZCA 75, [2016] NZAR 667.

decision to abide did not give rise to any tangible reduction in costs for the appellant. Moreover, the submissions filed by the respondent went further than to abide the Court’s decision on the admission of the subject evidence. The submissions advanced arguments to support the submission that in the main Dr Goodwin’s evidence would provide limited assistance to the Court. The submissions then advanced arguments to show why this was so. Thus, the stance adopted here was not the truly neutral stance that is to be expected when a party signals it will abide the decision of the Court. The arguments the respondent made to show Dr Goodwin’s evidence was of limited assistance needed to be addressed by the appellant. That he did so successfully warrants recognition by costs. Thus, in these circumstances no further reduction to the award is warranted.

[13]Accordingly, the appellant is entitled to costs totalling, $4,638.40.

Disbursements

[14]      The appellant also sought disbursements being the interlocutory application filing fee of $200 and the fee for sealing the costs order of $50. The respondent opposes the disbursement sought for sealing the costs order as any costs awarded in favour of the appellant will be offset by the costs order granted against the appellant on the substantive matter and will be submitted in one costs order for sealing. On this basis I allow the claim for the filing fee but disallow the claim for the sealing fee.

Outcome

[15]      The appellant is entitled to costs totalling $4,638.40 and disbursements totalling $200.

Duffy J