Commissioner of Police v Antolik

[2017] NZHC 86

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001075 [2017] NZHC 86

UNDER

the Criminal Proceeds (Recovery) Act

2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

JAN ANTOLIK Respondent

Hearing:	On the papers
Counsel:	M R Harborow and A Park for Applicant D P H Jones QC for Respondent
Judgment:	7 February 2017

COSTS JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 7 February 2017 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland. D P H Jones QC, Auckland.

COMMISSIONER OF POLICE v ANTOLIK [2017] NZHC 86 [7 February 2017]

[1]      The  Commissioner  of  Police  obtained  a  restraining  order  against  the respondent pursuant to the Criminal Proceeds (Recovery) Act 2009.1   I awarded the Commissioner 2B costs.  For the respondent, Mr Jones QC submits I should quash the costs order because a restraining order is interim in nature and costs should be fixed only when the substantive application (for forfeiture) has been determined. Mr Jones also submits the Commissioner has particular advantages as a litigant, so

there is additional risk in relation to an interim costs order.

[2]      I  reject  these  submissions.    The  same  arguments  were  advanced  to  but rejected by Rodney Hansen J in Commissioner of Police v Stepping Stone Finance Ltd.2   His Honour’s reasoning is instructive.  I respectfully adopt it:3

[3]  Profit Mark submits, first, that no award of costs should be made.  It is submitted that at what is described as the interim stage of restraint, an order for costs should not be made; costs should be determined at the conclusion of the substantive forfeiture proceedings.   It is further submitted that an award of costs should not be made against Profit Mark as its assets are restrained in their entirety and it has no ability to pay costs other than from the restrained funds.   If costs are awarded, Profit Mark submits that the award  should exclude  the  costs  of  filing the  application  and  supporting affidavits   and   that   liability   should   be   shared   equally   between   the respondents.

Should an order be made

[4]   For Profit Mark, it was submitted that as a restraining order is a discretionary remedy which does not finally determine substantive legal rights, costs should not be awarded at this stage.  I am unable to accept that submission.  By virtue of s 10(1)(a) of the Criminal Proceeds (Recovery) Act

2009 (the Act), a proceeding relating to a restraining order is a civil proceeding. Normal costs principles apply.  As Mr Harborow has pointed

out, this means that on occasion the Commissioner must also bear the costs of a successful respondent.

[5]  Contrary to the submission made on behalf of Profit Mark, the general rule is that, unless there are special reasons to the contrary, costs on an opposed interlocutory application should be fixed in accordance with the Rules when the application is determined.  In Chapman v Badon the Court of Appeal said:

Apart   from   applications  for   summary  judgment,   the   general approach to costs in respect of interlocutory applications is that they are dealt with at the time the applications are determined rather than being held over until the outcome of the proceedings is known. This

1      Commissioner of Police v Antolik [2016] NZHC 2649.

2      Commissioner of Police v Stepping Stone Finance Ltd [2013] NZHC 1537.

3      At [3]–[6], (footnotes omitted).

reflects the fact that the merits of particular applications and the merits of the substantive proceedings are different matters.

[6]  There is nothing in the scheme of the Act to indicate that costs should not be awarded until forfeiture orders are made or declined.  An application for a restraining order is a distinct step in the proceeding.  Its determination has no bearing on subsequent steps and there is no reason why costs should not be awarded at the time it is determined.

[3]      Mr   Jones   also   submits   that   because   the   Commissioner’s   associated investigation remains ongoing, costs should await determination of the substantive forfeiture  application.    However,  this  submission  tends  to  blur  the  distinction between an interlocutory application and a substantive action.   The Commissioner was successful in obtaining a restraining order.   He enjoyed interlocutory success. That fact will not change even if the Commissioner fails to obtain forfeiture.   So, normal costs principles should prevail.

[4]      The  Commissioner’s  2B  costs  amount  to  $12,934.    Mr  Jones  submits “significant portions of the Commissioner’s costs were incurred before the on notice application  was  filed  and  any  opposition  was  indicated”.    I  accept  as  much. However, as in Commissioner of Police v Stepping Stone Finance Ltd, the antecedent steps taken by the Commissioner were both necessary and in connection with to the restraining order application.  The Commissioner is entitled to recover costs for all

steps reasonably necessary to the determination.4

[5]      The costs order stands.  It is particularised at $12,934.

……………………………..

Downs J

4      High Court Rules, r 14.2(c).