Commissioner of Police v Borlase

[2021] NZHC 539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2123

[2021] NZHC 539

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

STEPHEN JAMES BORLASE

First respondent

CATHERINE RUTH BORLASE
Second respondent

CATHERINE BORLASE and RLA
TRUSTEE SERVICES NO 51 LIMITED

Third respondent

PROJENZ HOLDINGS LIMITED

Fourth respondent

Hearing:

On the papers

Appearances:

M R Harborow and H E Macdonald for the applicant

R M Mansfield, H C Stuart and S L Cogan for the respondents

Judgment:

17 March 2021

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 17 March 2021 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

R M Mansfield Barrister, Auckland H C Stuart Barrister, Auckland

S L Cogan Barrister Auckland Meredith Connell, Auckland Dominion Law, Auckland

COMMISSIONER OF POLICE v BORLASE [2021] NZHC 539 [17 March 2021]

[1]    The Commissioner now seeks costs in the wake of my 24 November 2020 judgment,1 dismissing the respondents’ application to obtain the Commissioner’s filing of a formal statement of claim (rather than the originating application by which profit and asset forfeiture orders are sought), but reserving leave to the respondents to bring on notice any aspect of their applications for tailored discovery.2

[2]    I reserved leave because—when, after the hearing, the Commissioner obtained disclosure made by the Serious Fraud Office (“SFO”) to Mr Borlase in the related criminal proceeding—I was “unable to discern what may remain of the respondents’ applications for tailored discovery”.3 I also reserved costs for determination on memoranda, but expressed the preliminary view:4

[N]o-one presently can claim to be so successful on the applications such that costs should be ordered in their favour, and costs on the applications therefore should lie where they fall or fell: that is, be borne by the party incurring them.

[3]    For the Commissioner—on grounds of predictability and expedition, costs to follow the event5—Hannah Macdonald contests those perspectives by pointing to the Commissioner’s success in opposing the respondents’ first application, and the needlessness of their latter applications, given the Commissioner’s “informal, voluntary discovery” of the SFO disclosure, “[u]pon understanding the respondents were seeking the SFO file and were of the view that its discovery would largely address the Discovery Applications”. She argues, for costs purposes, the respondents could not be thought successful when “[they] only secured that outcome because in the course of the hearing, they properly clarified and refined what they were seeking discovery of”. She adds, “had [the Commissioner] known [the SFO file] was primarily what the respondents wanted, he would have endeavoured to assist earlier”.

[4]    With respect, I prefer the characterisation the respondents successfully sought the Court’s intercession to obtain the disclosure sought. The Commissioner gave no

1      Commissioner of Police v Borlase [2020] NZHC 3103.

2      At [22]–[23].

3 At [21].

4      At [24]–[25].

5      High Court Rules 2016, r 14.2(1)(a) and (g).

indication at hearing he was willing to pursue his new-found comprehension, but instead was urged by the Court to do so (as then he did).6

[5]    On that basis, I confirm my preliminary view, and dismiss the Commissioner’s application for costs.

—Jagose J

6 At [20].