Bhana v Chief Executive of the Ministry of Business, Innovation and Employment

[2024] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-000101

[2024] NZHC 169

IN THE MATTER

of an interlocutory application for review of registrar’s decision declining to accept an appeal for filing

BETWEEN

JASU MATI BHANA and STEPHEN CHIMAN BHANA

Appellants

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:	On the papers
Appearances:	Mr Bhana, Applicant in Person M L Brown for the Respondent
Judgment:	14 February 2024

JUDGMENT OF HARVEY J

This judgment is delivered by me on 14 February 2024 at 11.30am pursuant to r 11.5 of the High Court Rules.

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

Registrar / Deputy Registrar

Solicitors:

Ministry of Business, Innovation Employment Legal Services, Auckland

And to:

Jasu and Stephen Bhana, Appellants

BHANA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2024] NZHC 169 [14 February 2024]

Introduction

[1]                  On 1 December 2023,1 I dismissed an appeal by Jasu and Stephen Bhana against a decision of the District Court which declined an application for a review of the Registrar’s decision not to accept an out of time notice of appeal against a Tenancy Tribunal decision.2 I also confirmed that costs would be dealt with on the papers.

Submissions

[2]                  In its memorandum of 12 December 2023, the respondent seeks $11,233 costs on a 2B basis, noting that a conservative approach has been taken, seeking costs only in respect of the first case management conference rather than each appearance or memorandum filed. The respondent acknowledges that while its submissions did not take three days to prepare, time spent preparing the common bundle and chronology should be incorporated into the costs sought for preparation of submissions.

[3]                  The appellants have  filed  two  memoranda  on  costs.  In  the  first,  dated  19 December 2023, the appellants noted the timeframes for submitting memoranda as to costs. They acknowledge that the respondent’s memorandum is “only [four] small paragraphs” but say that they are unable to respond within the 10-day timeframe due to ongoing illness. The appellants say variously that the respondent’s claimed costs are “exorbitant and unwarranted”, that the quantum is opposed, and that the amount is unjustified. The respondents indicate that their response will be submitted once the courts reopen following the holiday break.

[4]                  The appellants then claim that the respondents are not entitled to costs on the basis that various applications for leave to appeal, appeals currently before the courts, or appeals they are planning to file, have not yet been determined. They say that security for costs have been paid and therefore no prejudice is suffered by either the respondents or the Court as a result of their late filing.

1      Bhana v Chief Executive of the Ministry of Business, Innovation and Employment [2023] NZHC 3466.

2      Bhana v Ministry of Business, Innovation and Employment [2022] NZDC 17110.

[5]                  A second memorandum was then filed, dated 4 January 2024. The appellants say that they “are evaluating the possibility” of appealing, presumably, the substantive judgment.3 The appellants give their opinion that the timeframe for filing allows them to 22 January 2024 for an appeal to be filed. No reference was made to the costs issue.

Discussion

[6]                  It is well settled that an award is at the Court’s discretion. The proposed costs filed by the respondent are reasonable according to schs 2 and 3 of the High Court Rules 2016 and no issue is taken with the inclusion of time preparing the common bundle and chronology. The considerable procedural history to this matter, which has been prolonged by the appellants, supports the respondent’s claims as does their decision not to claim all costs in respect to this proceeding.

[7]Had the respondent sought a larger award, that would have been considered.

[8]                  The appellants have failed to provide a memorandum dealing sensibly with the claim of costs against them. They instead allude to further appeals. Whether those eventuate is immaterial to the issue of costs. As the successful party, the respondent is entitled to the benefit of a costs award.4 An appeal does not operate as a stay, though a costs award may be set aside upon successful appeal of the substantive judgment.5

Decision

[9]Costs are awarded as sought.

[10]The appellants must pay the respondent $11,233 for costs.

Harvey J

3      The appellants indicate that they may seek to appeal “the determination dated 1st September 2023”. I assume they refer to the 1 December 2023 judgment, above at n 1.

4      Taueki v Horowhenua District Council [2017] NZHC 1742 at [6].

5      Clayton v Currie [2018] NZHC 2544 at [4].