Bowerman v Goodfellow - [2024] NZHC 3837

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2024-470-21

[2024] NZHC 3837

UNDER the New Zealand Bill of Rights Act 1990 and the Trespass Act 1982

BETWEEN

CLINTON BOWERMAN

Plaintiff

AND

PETER GOODFELLOW

First Defendant

COMMISSIONER OF POLICE

Second Defendant

Hearing: On the papers

Appearances:

Plaintiff in Person

Lady D Chambers KC for the First Defendant R W Jenson for the Second Defendant

Judgment:

13 December 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

[Costs]

This judgment was issued by me on 13 December 2024 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors/Counsel:
Pollett Legal, Tauranga
Bankside Chambers, Auckland

BOWERMAN v GOODFELLOW [2024] NZHC 3837 [13 December 2024]

Introduction

[1] On 26 September 2024, I gave judgment for the first defendant and the second defendant striking out the plaintiff’s claim in its entirety.1 Costs are determined in this judgment.

[2] The first defendant, Mr Goodfellow, seeks an award of indemnity or increased costs. The second defendant seeks cost on a 2B basis.

[3] The plaintiff, Mr Bowerman, asks the Court to order that costs lie where they fall, or to reduce the costs orders that would otherwise be made, on compassionate grounds. Mr Bowerman refers to the alleged factual basis that underlies his claims, and his current state of health and position in life.

Legal principles

[4] While all matters relating to costs are at the discretion of the Court,2 that general discretion is qualified by the specific costs rules in the High Court Rules 2016 (HCR) and is exercisable only in situations not contemplated or not fairly recognised by the HCR.3 Ordinarily, the loser pays the winner’s costs according to the scale set out in the HCR.4

[5] The Court may make an order for increased costs or indemnity costs in the circumstances provided for under r 14.6(3) and (4) of the HCR.

[6] Under r 14.6(4)(a), the Court may order a party to pay indemnity costs if “the party has acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding”.

[7] Under r 14.6(3)(b)(ii), the Court may order increased costs under if a party takes or pursues an unnecessary step or an argument that lacks merit.

1      Bowerman v Goodfellow [2024] NZHC 2790.
2      High Court Rules 2016, r 14.1(1).
3      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [6].
4      High Court Rules, r 14.2(1)(a).

[8] In Bradbury v Westpac Banking Corporation, the Court of Appeal summarised the circumstances where scale costs, increased costs and indemnity costs might be ordered:5
(a)standard scale applies by default where cause is not shown to depart from it;

(b)increased costs may be ordered where there is failure by the paying party to act reasonably; and

(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.

[9] The party claiming indemnity costs bears the…

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.

Continue reading Bowerman v Goodfellow

Details

AGLC: Bowerman v Goodfellow [2024] NZHC 3837
Case: [2024] NZHC 3837
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand Tauranga Registry, Clinton Bowerman filed a lawsuit against Peter Goodfellow and the Commissioner of Police. Bowerman's claim included allegations of trespass, negligence, and other torts, which the defendants sought to have dismissed. The court was tasked with determining whether Bowerman's claims had merit and, if not, whether the defendants were entitled to increased or indemnity costs due to Bowerman's conduct. Additionally, Bowerman requested that costs be left where they fell or reduced on compassionate grounds.

The court reviewed the legal principles governing costs in New Zealand, including the discretionary nature of such orders, the circumstances under which increased or indemnity costs may be awarded, and the limited situations in which costs may be refused or reduced. The court noted that indemnity costs are reserved for egregious conduct and that the burden of proof lies with the party seeking such an award.

The court found that although Bowerman's claims were deficient and misconceived, his conduct did not warrant the award of indemnity costs to the defendants. The court concluded that the defendants' success was achieved through orthodox legal arguments and did not require special skill or experience. However, the court found that an allocation of two days on a 2C basis was appropriate for the preparation of the interlocutory applications due to the prolix nature of Bowerman's statement of claim.

The court determined that Bowerman's request for a reduction in costs was not supported by any of the grounds provided under the High Court Rules. Consequently, the court awarded costs to each defendant based on a daily rate, totaling $9,440.50 for the first defendant and $9,440.50 for the second defendant. Bowerman was also required to pay the first defendant's disbursements amounting to $860.60.

Orders