Ceramalus v New Zealand Post Limited
[2023] NZHC 1894
•20 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-240
[2023] NZHC 1894
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
NOBILANGELO CERAMALUS
Applicant
AND
NEW ZEALAND POST LIMITED
First Respondent
…/Cont
Hearing: On the papers Counsel:
Applicant in person
L C Sizer and B E Marriner for First and Third Respondents T M Thompson and J Barlow for Second Respondent
K Morrison and K H Lawson-Bradshaw for Fourth Respondent
Judgment:
20 July 2023
JUDGMENT OF LANG J
[on costs]
Solicitors:
Auckland Council
Ministry of Business, Innovation and Employment Buddle Findlay, Wellington
CERAMALUS v NEW ZEALAND POST LTD [2023] NZHC 1894 [20 July 2023]
NZ STANDARDS ORGANISATION
Second Respondent
NEW ZEALAND GEOGRAPHIC BOARD NGA POU TAUNAHA O AOTEAROA
Third Respondent
AUCKLAND COUNCIL
Fourth Respondent
[1] On 28 February 2023, I delivered a judgment in which I granted applications by the respondents for orders striking out applications for judicial review Mr Ceramalus had filed against them.1
[2] The parties have been unable to reach agreement regarding the issue of costs. I am therefore required to determine that issue on the basis of the memoranda filed by the respondents. Mr Ceramalus has declined to file any memorandum in relation to costs.
The arguments
[3] There can be no dispute that the respondents were the successful parties in the proceeding. The general principle is that, although costs are at the discretion of the Court, the unsuccessful party should contribute to the costs of the successful parties.2
[4] The Court usually awards costs in accordance with the scale contained within the High Court Rules 2016. The present case is one of average complexity requiring counsel having skill and experience considered average in the High Court. The proceeding therefore falls within costs category 2.3 I am also satisfied that costs should be awarded for individual steps calculated on a band B basis.
[5] The first respondent, New Zealand Post Ltd (NZ Post), seeks costs on a category 2B basis but with a 50 per cent uplift to reflect its assertion that Mr Ceramalus unnecessarily increased the time and expense of the proceeding by advancing arguments that had no merit and failing without reasonable justification to accept a settlement offer NZ Post made to him before the hearing.
[6] The second respondent, the NZ Standards Organisation, seeks a contribution towards its costs in the sum of $3,160 together with disbursements of $730.43. This is approximately one-half of the amount that would be payable on a category 2B basis. The reduction no doubt reflects the fact that in-house counsel was responsible for much of the work involved in responding to the proceeding.
1 Ceramalus v New Zealand Post Ltd [2023] NZHC 325.
2 High Court Rules 2016, r 14.2(1)(a).
3 Rule 14.3(1).
[7] The third respondent, the New Zealand Geographic Board Nga Pou Taunaha1894 O Aotearoa, seeks costs on a category 2B basis. It calculates this would result in Mr Ceramalus being required to pay the sum of $19,359 together with disbursements of $879.79.
[8] The fourth respondent, the Auckland Council, also seeks costs on a category 2B basis together with disbursements. It calculates this would result in Mr Ceramalus being required to pay the sum of $8,365 together with disbursements totalling $730.43.
Decision
Costs claimed by the first respondent
[9] The Court has the power to direct a party to pay increased costs where that party has unnecessarily increased the time and expense of the proceeding by pursuing an argument that lacks merit or by failing without reasonable justification to accept a legal argument.4 The Court may also order increased costs where a party fails, without reasonable justification, to accept an offer of settlement.5
[10] NZ Post contends these principles are engaged in the present case. First, it points out that it was required to consider three separate iterations of the statement of claim. The second and third of these were filed after Jagose J issued minutes on 22 and 29 June 2022 observing that the original version of the statement of claim, and an amended version that Mr Ceramalus subsequently filed, were seriously deficient. In the latter of these, Jagose J provided Mr Ceramalus with a last opportunity for further amendment. This resulted in Mr Ceramalus filing a further amended statement of claim on 8 July 2022.
[11] NZ Post points out that the third statement of claim ran to 30 pages but still failed to correct the deficiencies identified in the earlier iterations of the document. This prompted NZ Post to file applications for strike out and summary judgment, as well as an application for an order requiring Mr Ceramalus to provide security for NZ Post’s costs.
4 High Court Rules 2016, r 14.6(3)(b)(ii) and (iii).
5 Rule 14.6(3)(b)(v).
[12] I accept that New Zealand Post is entitled to costs incurred in responding to the various iterations of the statement of claim as well as for filing the applications for strike out and summary judgment. However, I do not consider an award of increased costs is justified due to the defects identified in Mr Ceramalus’ pleadings.
[13] NZ Post also contends that Mr Ceramalus pursued legal arguments that lacked merit. By way of example, he never identified any relevant statutory power that applied to the sole relevant function that fell within New Zealand Post’s responsibility. This was the creation and maintenance of the address and postcode finder. Mr Ceramalus also sought to advance claims against New Zealand Post for matters that were within the statutory responsibility of the second and fourth respondents. Further, he made serious, and ultimately unsubstantiated, allegations of fraud and dishonesty on the party of NZ Post. I am satisfied that NZ Post is entitled to an award of increased costs to reflect Mr Ceramalus’ determination to pursue legal arguments that had no merit and his failure to accept the legal argument advanced by NZ Post in opposition to his claims.
[14] On 18 July 2022, the solicitors acting for NZ Post wrote to Mr Ceramalus on a “without prejudice save as to costs” basis. It offered to settle the claim on the basis that Mr Ceramalus discontinued his claim and NZ Post would not seek costs against him. Mr Ceramalus declined the offer on 29 July 2022. This also contributed to NZ Post’s decision to file applications seeking strike out, summary judgment and security for costs.
[15] Mr Ceramalus is plainly in a much worse position now than if he had accepted NZ Post’s settlement offer. I am satisfied that this action also warrants an award of increased costs.
[16] I therefore grant NZ Post costs on a category 2B basis uplifted by 50 per cent for all steps taken after the filing of the applications seeking strike out, summary judgment and security for costs. NZ Post is also entitled to the disbursements that it claims.
[17] However, I note that both the first and third respondents have claimed costs calculated at .6 of a day for preparing the common bundle. To the best of my recollection only one bundle was used at the hearing. Unless I am in error on that issue it will therefore be necessary for either the first or the third respondent to reduce its claim for costs by .6 of a day.
Claim for costs by second respondent
[18] Mr Ceramalus cannot have any argument about the amount claimed by the NZ Standards Organisation. It is just one-half of the amount he would otherwise be required to pay on a category 2B basis. I therefore award the NZ Standards Organisation costs in the sum of $3,160 together with disbursements of $730.43.
Claim for costs by third respondent
[19] Similarly, there can be no argument as to the quantum of costs sought by the third respondent. I therefore award the third respondent costs in the sum of $19,359 together with disbursements of $879.79.
Claim for costs by fourth respondent
[20] The fourth respondent also seeks costs on a category 2B basis together with disbursements. The claim is eminently reasonable. I therefore award the fourth respondent costs in the sum of $8,365 together with disbursements in the sum of
$730.43.
Lang J
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