Commissioner of New Zealand Police v Tamihana
[2023] NZHC 1415
•8 June 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2017-441-000101
[2023] NZHC 1415
UNDER THE Criminal Proceeds (Recovery) Act 2009 IN THE MATTER OF
An application under r 14.2
BETWEEN
THE COMMISSIONER OF NEW ZEALAND POLICE
Applicant
AND
SHANE TAMIHANA
Respondent
AND
MICHAEL HOWARD ALLISON
First Interested Party
AND
CREDIT UNION BAYWIDE
Second Interested Party
Judgment on the
papers:
8 June 2023
COSTS JUDGMENT OF GENDALL J
[1] The applicant Commissioner has applied for costs against the first interested party, Michael Howard Allison (Mr Allison) of $8,932.31 in respect of his unsuccessful opposition to the order for forfeiture made by this Court on 6 May 2022.
[2] On 12 October 2017 the Commissioner was granted a without notice restraining order over a variety of property said to have been tainted by the criminal activity of the first respondent, Shane Tamihana (Mr Tamihana). That included the residential property of 3 Whitby Place, Flaxmere, a property that had been purchased
THE COMMISSIONER OF NEW ZEALAND POLICE v TAMIHANA [2023] NZHC 1415 [8 June 2023]
in the name of Mr Allison, but was alleged by the Commissioner to have been under the effective control of Mr Tamihana (in that the purchase was funded by him and carried out on his behalf). An on notice application to the same effect was filed on 18 October 2017.
[3] On 16 July 2018 counsel for Mr Allison appeared at a teleconference before this Court. Counsel indicated that restraint (and forfeiture) would be opposed, as Mr Allison disputed that Mr Tamihana was the beneficial owner of 3 Whitby Place, and claimed that he was the sole and true owner of the property.
[4] The Commissioner then advised Mr Allison by way of a letter to his counsel dated 1 August 2018, that costs would be sought should this opposition be unsuccessfully pursued.
[5]All other parties to the proceeding did not oppose restraint or forfeiture.
[6] The Commissioner maintains he incurred substantial costs in rebutting Mr Allison’s claim, including the costs of a full day hearing in the Napier High Court on 5 October 2020.
[7] Then, on about 6 May 2022, in this Court, I found against Mr Allison, ruling that Mr Tamihana was the beneficial owner of the 3 Whitby Place property and granting the forfeiture application.
[8] The Commissioner as I note now seeks costs against Mr Allison on his unsuccessful opposition to the order for forfeiture.
[9] Mr Allison has been served with all material relating to this proceeding. This includes the present application for costs served through his then counsel on the date of filing (16 December 2023). This followed attempts to settle the issue conveyed in correspondence between counsel in July and September of 2022. Counsel for Mr Allison then indicated in December that he had not had contact from his client for some time.
[10] On 23 December 2022 Mr Allison was then personally served with the costs application along with a notice of the first call of the proceedings. An affidavit of service confirming this is before the Court. No response of any kind has come from Mr Allison or anyone else on his behalf.
[11] I am satisfied Mr Allison has had notice of the present costs application and has had adequate opportunity to respond on the issue but has not done so.
[12] Rule 14.1 of the High Court Rules 2016 confirms that all issues of costs are at the discretion of the Court. However, as McGechan on Procedure notes at R 14.2.01, the primary principle is that “costs follow the event” generally meaning the unsuccessful party will pay the costs of the successful party. On this, Rule 14.2 relevantly reads as follows:
14.2 Principles applying to determination of costs
(1) The following general principles apply to the determination of costs:
(a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:
(b) an award of costs should reflect the complexity and significance of the proceeding:
(c) costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:
(d) an appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:
(e) what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:
(f) an award of costs should not exceed the costs incurred by the party claiming costs:
(g) so far as possible the determination of costs should be predictable and expeditious.
[13] Clearly the Commissioner has succeeded in this proceeding against the unsuccessful opposition Mr Allison attempted to mount. He seeks costs on a (significantly reduced) category 2B scale basis here.
[14] The Commissioner maintains that, in accordance with the allowances set out in Schedule 3 for proceedings such as this, the total quantum of category 2B costs available to be claimed based purely on the steps occasioned by Mr Allison’s unsuccessful opposition would be $19,837.
[15] Acknowledging however that the costs claimed must not exceed those actually incurred, the actual total cost the Commissioner says he has incurred for legal services related to Mr Allison’s opposition to the forfeiture application has been $8,932.31. It is this sum for which the Commissioner seeks reimbursement here.
[16] The Commissioner says also that since Mr Allison’s opposition was declined, he has attempted to settle the issue of costs directly with Mr Allison, to no effect.
[17] Accordingly, given first, that the reduced $8,932.31 costs sought here by the Commissioner are entirely reasonable in my view, bearing in mind the much larger sum that Mr Allison is ordinarily liable for such in accordance with the High Court Rules, and secondly, that Mr Allison has not provided any reason why such costs liability for this sum should not result, and thirdly, that he has not otherwise sought to participate in any way with respect to the present application, I determine here that the Commissioner is entitled to an award of costs against Mr Allison for this proceeding in the sum of $8,932.31.
[18]An order to this effect is now made.
Gendall J
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