Commissioner of Police v Gan
[2015] NZHC 643
•1 April 2015
IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-005037 [2015] NZHC 643
UNDER the Criminal Proceeds (Recovery) Act
2009
BETWEEN
COMMISSIONER OF POLICE Applicant
AND
YIXIN GAN First Respondent
FEI LIN
Second Respondent
Hearing: (On the papers) Counsel:
K Eastwood for Applicant
C T Patterson for Non-PartyJudgment:
1 April 2015
JUDGMENT OF VENNING J
Re: Restraining Orders and Interested Party Costs
This judgment was delivered by me on 1 April 2015 at 4.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Meredith Connell, Auckland
Skeates Law Limited
Copy to: C T Patterson, Auckland
COMMISSIONER OF POLICE v GAN & ANOR [2015] NZHC 643 [1 April 2015]
[1] The Commissioner seeks on notice restraining orders and a costs award in favour of the Commissioner against Ms Xu.
[2] On 4 December 2014 this Court made without notice restraining orders in respect of units 1305 and 1406, 20 McRae Way, New Lynn as well as carpark 14 in the complex. The Court also ordered that in the event any of the properties were sold the restraining orders were to apply to the proceeds of sale. By an on notice application dated 9 December 2014 the Commissioner sought orders in relation to the properties or, alternatively discrete restraining orders under ss 24 and 25 of the Act in respect of the properties. As an interested party, Ms Xu, the registered proprietor of the properties was served with the application. Ms Xu opposed the Commissioner’s application. The opposed application was scheduled to be heard on
10 March 2015. On 4 March 2015 Ms Xu withdrew her opposition to the
Commissioner’s application.
The application for restraining orders
[3] In light of the affidavit evidence before the Court the Commissioner is entitled to the on notice restraining orders sought in the application in relation to the property. Orders accordingly.
Costs
[4] The Commissioner seeks costs against Ms Xu on a 2B basis for all steps associated with the on notice application. Ms Xu opposes costs, except for the preparation of the Commissioner’s submissions for the defended hearing. For Ms Xu it is submitted that firstly, costs were not expressly sought in the application. However, it was not strictly necessary for the Commissioner to have sought costs in the application. Applications such as these are civil proceedings. Costs in civil proceedings remain at the discretion of the Court.
[5] Counsel for Ms Xu next submitted that, unlike an ordinary case where costs would follow the event, it could not be said in this case that the Commissioner has succeeded and is thus entitled to costs. Nor could it be suggested that Ms Xu is in the position of a discontinuing plaintiff. While I agree with the submission that Ms
Xu is not in the position of a discontinuing plaintiff, the Commissioner has succeeded in obtaining the orders sought in the application and Ms Xu, as a party served and who took steps to oppose the application, is prima facie liable for costs.
[6] Counsel for Ms Xu then submits that there should be no award of costs for the applications and supporting affidavits as they were required in order to prevent the restraining orders from lapsing in any event. The same point could be made in relation to any ordinary proceeding issued against a defendant. The issue is whether the defendant, or in this case Ms Xu as a party served, takes steps to actively oppose the proceedings once issued. Ms Xu did so. In doing so she engaged with the proceedings and the Commissioner is entitled to the costs of the proceedings having succeeded in them. I do not accept the validity of the “but for” test proposed by counsel for Ms Xu. It is also contrary to the decision of Rodney Hansen J in Commissioner of Police v Stepping Stone Finance Ltd & Ors in which case His
Honour said:1
[9] For Profit Mark, it is submitted that the costs of filing the application and supporting affidavits should not be part of a costs award as those documents had to be filed whether or not the application was opposed. They were, however, necessary steps in the proceeding. They were costs incurred by the Commissioner for the purpose of obtaining restraining orders. The Commissioner is not disentitled to an order because he would have had to make the application in any event. The Commissioner is entitled to recover costs for all steps reasonably necessary to the determination.
[7] I adopt and apply similar reasoning.
[8] For the same reasons I reject Ms Xu’s objection to the costs of attending the mentions hearing on 11 December 2014. There is more force in the submission for Ms Xu that there should be no costs for the mention hearing on 17 December 2014, which was only required because the Commissioner had not filed full affidavits in support of the on notice application and had sought and obtained an indulgence to enlarge the time to do so. I disallow the costs for that step.
[9] Ms Xu properly does not oppose costs on the preparation of submissions.
1 Commissioner of Police v Stepping Stone Finance Ltd & Ors [2013] NZHC 1537.
[10] The Commissioner is entitled to costs for considering and concluding the memorandum dated 4 March 2015. While the memorandum was drafted by counsel for Ms Xu, clearly it had to be reviewed and concluded by counsel for the Commissioner. Also costs in respect of sealing the Court’s orders are costs that follow the event.
[11] The remaining item is the claim for the costs on the costs memorandum itself. That is a matter for the discretion of the Court. In some instances it will be appropriate that the costs of the costs memorandum will be permitted. I do not consider this case to be one of those. Ms Xu responsibly withdrew her opposition. The parties responsibly agreed to deal with the matter of costs by way of an exchange of memoranda. I disallow the costs of the costs memorandum itself.
Result/orders
[12] There will be an order for costs in the Commissioner’s favour against Ms Xu
in the sum of $8,557.
Venning J
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