Commissioner of Police v Cole

[2023] NZHC 1765

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1411

[2023] NZHC 1765

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

BRANDON ST JOHN COLE

First Respondent

MICHAEL McGREGGOR COLE

Second Respondent

Hearing:	On the papers
Counsel:	S Earl and C Hodgson for Applicant J Wall for First Respondent
Judgment:	7 July 2023

COSTS JUDGMENT OF HINTON J

This judgment was delivered by me on 7 July 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

COMMISSIONER OF POLICE v COLE [2023] NZHC 1765 [7 July 2023]

[1]                 By judgment dated 2 June 2023, I dismissed Mr B Cole’s application for release of reasonable living costs from restrained property.

[2]                 I reserved leave for the Commissioner to pursue a claim for costs within 10 working days from 2 June 2023.

[3]                 I understood at that point that Mr B Cole was legally aided which was incorrect.

[4]                 On 15 June 2023 the parties filed a joint memorandum advising that the Commissioner seeks costs in the usual way and the application is unopposed.

[5]                 The Commissioner seeks costs on a 2B basis in the sum of $10,695.25 as set out in the attached Schedule A.

[6]                 I endorse, as Downs J has previously in Commissioner of Police v Antolik,1 Rodney Hansen J’s reasoning in Commissioner of Police v Stepping Stone Finance Ltd,2 that normal costs principles apply to all matters under the Criminal Proceeds Recovery Act 2009 (the Act). In other words, costs generally follow the event and under r 14.2(1)(a) of the High Court Rules 2016, a party who fails with respect to a proceeding should pay costs to the party who succeeds. In Manukau Golf Club Inc v Shoye Venture Ltd,3 the Supreme Court endorsed this fundamental principle.

[7]                 An application to vary restraining orders is an originating application of its own.4

[8]                 I note, as the Commissioner fairly points out, that the affidavits and written submissions filed in support of his opposition were directed at both respondents’ applications for living costs (and the Commissioner has no entitlement to costs in relation to the second respondent’s application). I agree, however, that the time allocation sought should be allowed as the Commissioner was required to deal with

1      Commissioner of Police v Antolik [2017] NZHC 86 at [2].

2      Commissioner of Police v Stepping Stone Finance Ltd [2013] NZHC 1537 at [3]–[6].

3      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]–[8].

4      Commissioner of Police v Gong [2018] NZHC 1686 at [7]–[13].

each application on its own facts and the documents filed were comprehensive. As noted, the costs application is unopposed.

[9]                 The Commissioner confirms that the allocated costs sought do not exceed the actual time incurred for Mr B Cole’s application, which coincides with my own assessment of the matter.

[10]              Although two counsel appeared for the Commissioner, certification is not sought for second counsel. Overall, I consider the scale costs as sought are appropriate.

[11]              For the above reasons and without opposition from Mr B Cole, I make an award of costs against him on a 2B basis in the sum of $10,695.25.

Hinton J

Schedule A

Scale 2B costs sought against Mr B Cole
Item	Description	Allocation (schedule 3)	Amount recoverable ($2,390 per day)
38	Filing notice of opposition to application for living costs dated 9 November 2022 and supporting affidavits	2	$4,780.00
40	Preparation of written submissions	1.5	$3,585.00
41	Preparation of bundle for hearing	0.6	$1,434.00
42	Appearance of principal counsel at hearing (0.375 days)	0.375	$896.25
Total 2B costs		$10,695.25