Commissioner of Police v Rye HC Auckland CIV 2010-404-4897

[2010] NZHC 1958

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-4897

UNDER  the Criminal Proceeds (Recovery) Act 2009

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDMARCEL SHANE RYE Respondent

Hearing:         On the Papers

Counsel:D G Johnstone for Applicant No appearance for Respondent J Soondram for M R Cooper

Judgment:      28 October 2010

JUDGMENT (No.2) OF COOPER J ON COSTS

This judgment was delivered by Justice Cooper on

28 October 2010 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

J Soondram, PO Box 4304, Shortland Street, Auckland

POLICE V RYE HC AK CIV-2010-404-4897  28 October 2010

[1]      In the judgment that I delivered on 30 September 2010, I reserved questions of costs.

[2]      Mr Soondram has sought an award of costs in the sum of $3,783.50 on behalf of Mr Cooper.  Counsel for the Commissioner of Police opposes any award of costs. If the Court is nevertheless minded to award costs, the Commissioner challenges the manner in which Mr Cooper has calculated the quantum sought.

[3]      The  case  arose     under  the  Criminal  Proceeds  (Recovery)  Act  2009. Mr Cooper’s  motorcycle  was  amongst  the  property  that  the  police  seized  when executing a search warrant at an address occupied by the respondent, Mr Rye.  In my judgment of 30 September I directed that the motorcycle should be returned to Mr Cooper.   I accepted Mr Cooper’s evidence that he had left the motorcycle at Mr Rye’s  premises  for  a  legitimate  reason,  namely because  he  thought  Mr Rye intended to purchase it.  I held that the motorcycle was not tainted property to which the Criminal Proceeds (Recovery) Act applied.  Mr Cooper seeks costs on the basis that he has succeeded in opposing the application made by the Commissioner insofar as it related to the motorcycle in question.

[4]      The application is opposed essentially on the basis that the police had seized the motorcycle amongst other vehicles at the respondent’s premises, believing that the vehicles there belonged to the respondent.   Prior to filing the application, the police had attempted to make telephone contact with Mr Cooper on 27 July, to no avail.  Mr Cooper subsequently had made no approach to the police despite being aware that the police had custody of the motorcycle.  In addition, counsel contend that once the police had possession of the motorcycle, it was problematic for them to elect to return it to Mr Cooper without speaking to Mr Rye.  Mr Rye could not be contacted, and by the time of the substantive hearing, that remained the position. Counsel note that they kept Mr Soondram appraised of the inability to locate Mr Rye so as to avoid the need for him to prepare substantively.  Further, at the hearing, the applicant did not advance arguments that the orders sought should extend to the motorcycle.

[5]      While all of the points advanced by counsel for the applicant are correct, nevertheless I do not consider that they justify a refusal of costs to Mr Cooper.  In simple terms, property that he owned was seized, albeit that the police were initially, at least, justified in taking that step.

[6]      It seems to me inherent in the broad powers given to the police under the legislation that from time to time innocent persons will inadvertently be put to costs in taking steps to ensure that their property is returned to them.  This is such a case. That does not mean however that the rightful owner of property that is not tainted property should be left to meet the costs of ensuring his property is returned.   I consider that an award of costs is appropriate on ordinary principles, as set out in rr 14.2 and 14.8 of the High Court Rules.

[7]      Mr Cooper seeks costs on a category 2A basis.  Counsel for the applicant do not disagree that the matter should be dealt with on that basis, but question the quantum.  In particular:

a)       Counsel   for   the   applicant   challenge   the   sum   claimed   for “commencement of defence”, noting that Mr Cooper filed his notice of opposition (which was not served on the applicant) prior to instructing counsel.

b)In respect of sums claimed for pre-trial hearings, counsel point out that they were mentions hearings and should attract only an allocation of 0.2 of a day under item 4.17 rather than the 0.25 identified by Mr Soondram in each case.

c)       Counsel also note that substantive preparation would not have been required on the part of Mr Cooper and that, in any event, costs should not exceed the costs that Mr Cooper actually incurred.   As to the latter, counsel suggest that counsel for Mr Cooper should be directed to provide copies of the relevant invoices.

[8]      I do not consider that any further steps should be required of Mr Soondram in this case.  Plainly, given that Mr Cooper himself filed the notice of opposition on 16

August,   it   was   wrong   for   Mr Soondram   to   claim   one   day   in   respect   of “commencement of defence”.  Once counsel were instructed, however an affidavit was filed.   I propose to allow half a day under the heading “commencement of defence”.  Then, 0.25 of a day should be allowed for the hearing.  In this respect, while it is correct that the applicant did not advance opposition to Mr Cooper’s position at the hearing, nor had it formally recorded its position prior to the hearing. It  was  clearly  necessary  for  counsel  for  Mr  Cooper  to  appear.    I  note  that Mr Soondram has not purported to charge in respect of preparation.

[9]      I accept that the applicant is correct in relation to the appearances of the two mentions hearings.

[10]     The result is a costs entitlement of 1.15 days which, in accordance with category 2 band A results in a quantum of $2,162.

[11]     I direct that Mr Cooper is to have his costs in that amount.