Ahuriri v Etheredge
[2014] NZHC 1693
•18 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-000514 [2014] NZHC 1693
UNDER the Property Law Act 2007 IN THE MATTER OF
an application for a division of property in kind among co-owners
BETWEEN
FRANCES ANN AHURIRI and JOSEPH ISAAC TAHITAHI and JACOB WIREMU TAHITAHI Plaintiffs
AND
ARINA FRANCES ETHEREDGE Defendant
Hearing: [On the Papers] Counsel:
M J Koppens for the Plaintiffs
D J Taylor for the DefendantJudgment:
18 July 2014
JUDGMENT OF DUFFY J [Re Costs]
This judgment was delivered by Justice Duffy on 18 July 2014 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: M J Koppens, Warkworth
D J Taylor, Hamilton
Solicitors: Dyson Smythe and Gladwell Lawyers (B J Lupton), Warkworth
A N McAllen, Hamilton
AHURIRI and ORS v ETHEREDGE [2014] NZHC 1693 [18 July 2014]
Background
[1] The plaintiffs have asked for the hearing fees to be shared between the parties, on an interim basis, in reliance upon the Court’s discretion to award costs under part 14 of the High Court Rules.
[2] The defendant has refused to contribute to the hearing fees.
[3] The plaintiffs submit that this application falls within the Court’s absolute
discretion under r 14.1 of the High Court Rules.
[4] The defendant submits that the Court does not have jurisdiction to make the order sought.
Defendant’s submissions
[5] The defendant refers to r 14(2) of the High Court Fees Regulations 2013. This rule provides:
14Hearing fees in proceedings involving counterclaims, cross- claims, claims against third or subsequent parties, or cross- appeals
(1) This regulation applies if a hearing involves 1 or more counterclaims, cross-claims, claims against a third or subsequent party, or cross-appeals.
(2) At the end of the hearing, the court—
(a) may give a direction as to what portion of the scheduling fee and actual hearing fee each party is liable to pay; and
(b) may, in order to give effect to a direction under paragraph
(a), make 1 or both of the following orders:
(i) an order that a party other than the plaintiff, applicant, or appellant (as applicable) pay an amount to the plaintiff, applicant, or appellant:
(ii) an order that a portion of the balance of the hearing fee payable under regulation 11 (if applicable) be paid by a party other than the plaintiff, applicant, or appellant (as applicable).
[6] The defendant says the existence of a jurisdiction to determine costs at the end of the hearing is a strong indication that no jurisdiction exists at any earlier time. The defendant submits further that whilst the Court’s discretion in r 14.1 is unfettered, the subsequent rules make it clear that the time to exercise the discretion as to costs is at the conclusion of the hearing. An interim costs order cannot be granted part way through a hearing.
Analysis
[7] I consider that the meaning of r 14 of the High Court Fees Regulations is clear. This rule gives the Court a discretion to make a direction as to the portion of hearing fee that each party is liable to pay. This discretionary power applies “at the end of the hearing”.
[8] The costs regime under part 14 of the High Court Rules is not applicable to the relief that the plaintiffs seek. The determination of costs occurs at the conclusion of a hearing. In Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305, the Supreme Court said at [8]:
A fundamental principle applying to the determination of costs in all the general courts in New Zealand is that costs follow the event.
[9] In addition, some of the rules that apply to increased and indemnity costs reflect how parties acted during the proceeding. Therefore, it cannot sensibly be said that a costs order could be granted before a hearing has taken place.
[10] The appropriate avenue for the plaintiffs to seek relief is under the High Court Fees Regulations. Rule 9 provides that it is the plaintiff in respect of a proceeding that must pay the scheduling fee and the estimated hearing fee. Rule 9(6) provides that a proceeding does not constitute two or more proceedings by reason only that it involves a counterclaim. Under r 10 of the regulations, the failure to prepay scheduling fees or estimated hearing fees gives the Registrar a discretion to vacate the hearing.
[11] Rule 18 provides:
18 Power to waive fees
(1) A person otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to a Registrar for a waiver of the fee.
(2) The Registrar may waive the fee payable by the person if satisfied,—
(a) on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or
(b) that the proceeding,—
(i) on the basis of one of the criteria specified in regulation 20, concerns a matter of genuine public interest; and
(ii) is unlikely to be commenced or continued unless the fee is waived.
(3) An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.
[12] As there is an existing mechanism to deal with plaintiffs who cannot pay hearing fees, the rules relating to costs do not apply.
[13] For the above reasons, I consider that it is not appropriate to apply the costs regime before the hearing has commenced. It goes against the principle that costs should follow the event. If the plaintiffs are unable to pay hearing fees, the correct avenue is to seek relief under the High Court Fees Regulations 2013 where a waiver can be obtained. Rule 14 also provides the Court with a discretion regarding the apportionment of hearing fees between the parties where a counterclaim is involved, at the end of the hearing.
Result
[14] The plaintiffs’ application is dismissed.
Duffy J
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