Bamber v Official Assignee

[2024] NZHC 449

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-77

[2024] NZHC 449

WĀHANGA UNDER

Section 414(1) of the Insolvency Act 2006

MŌ TE TAKE

IN THE MATTER

of the reserved judgment of District Court Judge RLB Spear dated 27 July 2022

I WAENGA IA BETWEEN

KATHLEEN MATA BAMBER and BRUCE ANDERSON

Ngā Kaipira Appellants

ME AND

THE OFFICIAL ASSIGNEE

Te Kaiurupare Respondent

Nohoanga Hearing:	21 February 2023
Kanohi kitea Appearances:	C B Hirschfeld for the Appellants RMG Hindriksen for the Respondent
Whakataunga Judgment:	6 March 2024

TE WHAKATAUNGA Ā KAIWHAKAWĀ MĀTĀMUA HARVEY

Costs Judgment of Harvey J

This judgment is delivered by me on 6 March 2024 at 3 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Foster Milroy, Hamilton Meredith Connell, Auckland

Counsel:
C Hirschfeld, Barrister, Auckland

BAMBER v THE OFFICIAL ASSIGNEE [2024] NZHC 449 [6 March 2024]

Introduction

[1]                 On 23 February 2023, I heard an appeal by Kathleen Bamber and Bruce Anderson (the Bambers) against a decision of the District Court under s 152 of the Insolvency Act 2006 granting an order for possession. The property in question is their whānau home at Ōwhata, Rotorua. The Bambers were unsuccessful. Both counsel filed submissions on costs. Unfortunately, for reasons that remain unclear, this outstanding matter of costs had not been disposed of until now. The delay in issuing this judgment is therefore regretted.

Background

[2]                 The background and issues to that appeal can be found in the substantive judgment.1 In summary, Mr and Mrs Bamber have been embroiled in lengthy and complex litigation before the Māori Land Court and Māori Appellate Court for many years in a dispute involving the trustees of Māori freehold land near Reporoa.

[3]                 Ultimately, the Bambers were found liable to the trust for, inter alia, unpaid rent in breach of the lease of the trust’s land.2 They then appealed but that too was unsuccessful.3

Legal principles

[4]                 It is well settled that any award of costs are at the discretion of the Court.4 This discretion is to be guided by the general principles in rr 14.2 to 14.5 of the High Court Rules 2016. Rule 14.2(1) provides that the party who failed with respect to a proceeding should generally pay the costs of the successful party. The rules are intended to create a framework for determining costs in individual cases that is both

1 Bamber v Official Assignee [2023] NZHC 260, [2023] 2 NZLR 636.

2 Monschau v Bamber — Tahorakuri A No 1 Section 33A2 (2015) 125 Waiariki MB 260 (125 WAR 260).

3 Monschau v Bamber — Tahorakuri A No 1 Section 33A2 (2017) 157 Waiariki MB 173 (157 WAR 173); Bamber v Monschau — Tahorakuri A No 1 Section 33A2 (2019) 218 Waiariki MB 292 (218 WAR 292); and Bamber — Tahorakuri A No 1 Section 33A2 (2021) 259 Waiariki MB 274 (259 WAR 274).

4 High Court Rules 2016, r 14.1

“predictable and expeditious”.5 The overriding consideration is that any award ought to do justice between the parties.6

[5]As to claims for increased costs, the Court’s jurisdiction is derived from r 14.6:

14.6     Increased costs and indemnity costs

…

(3)  The court may order a party to pay increased costs if—

…

(b)  the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)  failing to comply with these rules or with a direction of the court; or

(ii)  taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)   failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

(iv)   failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)  failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

…

(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

[6]                 The extent to which a failure to act reasonably contributed to the time and or expense of the proceeding must be considered when determining a percentage uplift.7 The maximum increase of 50 per cent on scale costs is reserved for the most serious conduct contemplated under s 14.6(3).

5     Rule 14.2(g).

6     Middeldorp v Avondale Jockey Club Inc [2021] NZCA 238 at [31].

7      AAI Ltd v 92 Lichfield Street (in req and in liq) [2016] NZHC 90 at [20], citing Rembrandt Custodians Ltd v Pro-Drill (Auckland) Ltd HC Auckland M337/IN03, 13 June 2003 at [38].

Discussion

[7]                 The evidence appears to confirm that Bambers have lost everything – the lease of the land, their claims against the trustees, their personal financial standing and now their home. It may still be arguable that, even so, they should now pay costs as the unsuccessful party who had prolonged the final outcome needlessly via all manner of protracted appeals and rehearing over a number of years. Added to that is the fact that they had opportunities to resolve the proceedings but refused, or failed, to do so.

[8]                 Yet as Wylie J confirmed when he declined security for costs, the Bambers are elderly, ill, bankrupt and pensioners.8 Standing back, and taking account of these dire circumstances, and the fact that at the heart of the present situation was an internal whānau dispute over the use of Māori freehold land, I see no practical purpose in adding to the debt already due by including costs against the bankrupts’ estate.

[9]                 Ultimately, costs are a matter within the Court’s discretion. While I acknowledged that the Official Assignee has prevailed, and in the usual course of events would be entitled to an award of costs, in the particular circumstances of this case, I consider that that would be unduly harsh and unjust.

Decision

[10]For the above reasons, I decline to award costs.

Harvey J

8      Bamber v Official Assignee HC Auckland CIV-2022-463-77, 13 September 2022 (Minute) at [4].