Commissioner of Police v Read
[2015] NZHC 3085
•7 December 2015
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2011-470-001070 [2015] NZHC 3085
UNDER The Criminal Proceeds (Recovery) Act
2009
BETWEEN
THE COMMISSIONER OF POLICE Applicant
AND
GARY JOHN READ First Respondent
KASHARN ORINI READ Second Respondent
WILLIAM JAMES READ Third Respondent
PHILLIPA KAREN WILSON Fourth Respondent
Hearing: (On the papers) Counsel:
Richard Jenson for the Applicant
Bill Nabney for the First Respondent
No appearances for the Second Respondent
Andrew Speed for the Third and Fourth RespondentsJudgment:
7 December 2015
[COSTS] JUDGMENT OF MOORE J
This judgment was delivered by me on 7 December 2015 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
THE COMMISSIONER OF POLICE v READ & ORS [2015] NZHC 3085 [7 December 2015]
[1] On 28 August 2015 I delivered my judgment in this matter. I allowed the Commissioner’s application for forfeiture of Mr Read’s property.1 I reserved the question of costs.
[2] Mr Read was legally aided throughout the proceedings and the Commissioner does not seek costs against him. However, the fourth respondent, Ms Wilson, took an active, albeit limited, role in the proceedings. Ms Wilson was the litigation guardian for the children who were the discretionary beneficiaries of Mr Read’s trust.
[3] I am advised the parties have been unable to resolve the question of costs. The Commissioner now seeks an order for costs against the fourth respondent on a
2A basis.
[4] Ms Wilson, on behalf of her children, applied for an order for relief from forfeiture on the grounds that the children had not unlawfully benefited from significant criminal offending and that they had a beneficial interest in the trust. This argument was unsuccessful because I held that the children enjoyed only a contingent interest in the trust property and, as such, were not eligible for relief of the kind sought.
[5] I accept the Commissioner’s submission that he was the successful party in relation to this aspect of the proceedings and that costs should normally follow the event. The Commissioner submits that this is a 2B proceeding and that costs on a 2A basis would be appropriate to reflect that Ms Wilson’s involvement in the overall proceedings was relatively minor. The Commissioner thus seeks an order for costs of $10,035.
[6] I accept that 2A is an appropriate categorisation for the proceeding as between the Commissioner and Ms Wilson. While it is clear from the High Court Rules that a proceeding should generally receive only one categorisation under
r 14.3, regardless of the individual steps with which the application is concerned,2 it
1 The Commissioner of Police v Read & Ors [2015] NZHC 2055.
2 High Court Rules, r 14.3(2).
is well accepted that a Court may apply different time bands to the same proceedings as appropriate.3 Here the “A” time band adequately reflects the time required to deal with Ms Wilson’s claim.
[7] However, this does not mean that I accept completely that the Commissioner’s quantification of costs is appropriate. In particular, while the amount claimed by the Commissioner for preparation may be reasonable, the Commissioner also seeks costs for the full two days of hearing. The reality is that the overwhelming majority of the hearing time was devoted to Mr Read’s defence of the Commissioner’s application. The argument in relation to Ms Wilson represented only a minor component of the overall hearing. I thus consider that costs must be reduced to reflect this fact.
[8] Mr Speed, for Ms Wilson, asks that costs lie where they fall. He submits that awarding costs against Ms Wilson when Mr Read was in fact the primary respondent would offend against r 14.15 which prohibits two orders for costs being made in the same proceeding. I do not accept this argument. While the Commissioner has not elected to pursue costs against Mr Read because he is legally aided, it is normal for co-respondents to bear a proportion of the costs consistent with and reflecting the extent of their role in the proceedings.
[9] Mr Speed, in the alternative, submits that a reduction of costs on a 2A basis by 75 per cent is appropriate for the present proceeding to reflect the modest role that Ms Wilson played in the proceedings. This is formulated on Mr Speed’s estimate, which I consider to be fair, that around a quarter of the hearing time was allocated to Ms Wilson’s argument. Mr Speed also argues that the case management conferences were primarily concerned with the proceeding against Mr Read and that Ms Wilson should not be required to pay costs in relation to those.
[10] I intend to adopt a course which lies between that which the Commissioner
submits and the course pressed by Mr Speed. I consider that Ms Wilson’s defence
was sufficiently independent that it qualifies for costs as if it was an independent
3 Commissioner of Inland Revenue v Chesterfields Preschools Limited [2010] NZCA 400, (2010)
24 NZTC 24, 500 at [161]; Paper Reclaim Limited v Aotearoa International Limited [2007] NZCA 544, (2007) 18 PRNZ 743.
proceeding. The Commissioner’s attendances in responding to her application were not lessened or reduced by the fact that proceedings were already on foot between the Commissioner and Mr Read. For this reason I consider the Commissioner should receive full costs for the preparation of this part of the proceeding on a 2A basis. However, I accept Mr Speed’s submission that the Commissioner should not receive costs for the entirety of the two day hearing. Rather, I consider that the hearing time for Ms Wilson’s claim should be deemed to be one half day. I consider that the costs in relation to the case management conferences should also be reduced by 75 per cent for the same reason.
[11] On this basis, and based on the schedules provided by counsel, I award costs on a 2A basis in favour of the Commissioner against Ms Wilson in the sum of $4,683
together with disbursements as fixed by the Registrar.
Moore J
Solicitors:
Crown Solicitor, Tauranga
Mr Nabney, Tauranga
Mr Speed, Auckland
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