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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 1544
Decision Date: 2 July 2020

CaseChat Overview and Summary

The High Court of New Zealand considered the costs associated with an interlocutory application made by the appellant, A, against the National Standards Committee (NSC) in disciplinary proceedings. The application sought to adduce further evidence on appeal, and the appellant was successful in relation to three of the five topics addressed in the updating affidavit. The court was tasked with determining the appropriate costs and disbursements to be awarded to the appellant, considering submissions from both parties. The appellant argued that while not entirely successful, their partial success warranted costs on a 2B basis, reduced by 20 percent. The NSC contended that the parties' successes and failures were relatively even, suggesting a 70 percent reduction in costs. The court held that while the parties' successes were indeed relatively even, the appellant's overall success warranted an award of costs. However, the appellant's costs should be reduced by 20 percent to account for the NSC's additional costs in opposing the unsuccessful arguments. The court further held that no reduction was warranted for the NSC's decision to abide the Court's decision on the admission of Dr Goodwin's evidence, as the NSC's submissions went beyond merely abiding the decision.

The court determined that the appellant was entitled to costs totaling $4,638.40 and disbursements of $200 for the filing fee, with the claim for the sealing fee being disallowed. The court's decision was grounded in the principle that the losing party should pay the costs of the winning party, with adjustments made to account for the partial success and the additional costs incurred by the NSC in opposing the unsuccessful arguments. This decision aligns with the precedent established in Weaver v Auckland Council and Hong v Deliu, which emphasize the importance of a realistic appraisal of the end result in determining costs. The court's judgment ensures that both the principle of the losing party paying costs and the practicalities of the case are appropriately balanced.

Orders