Commissioner of Police v Tang

[2013] NZHC 2595

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2009-404-008478 [2013] NZHC 2595

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDZHONG JIE TANG Respondent

Hearing:                   On the papers

Counsel:                  D Johnstone for Applicant

P Kaye for Respondent

Judgment:                4 October 2013

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 4 October 2013 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Meredith Connell, Auckland

Stephen Rodney Anderson, Auckland

Counsel:            Peter Kaye, Auckland

THE COMMISSIONER OF POLICE  v ZHONG JIE TANG [2013] NZHC 2595 [4 October 2013]

[1]      Mr Tang was convicted of a number of methamphetamine offences and is currently serving a lengthy term of imprisonment as a result.

[2]      The  Commissioner  of  Police  (“Commissioner”)  filed  these  proceedings seeking a profit forfeiture order against Mr Tang in the sum of $360,000, pursuant to s 55 of the Criminal Proceeds (Recovery) Act 2009.

[3]      Mr Tang accepted he had been involved in significant criminal activity, but challenged the statutory presumption that the amount of any benefit received from his criminal activities was the sum specified in the Commissioner’s application. Mr Tang submitted that the benefit he received was only $20,000.   Mr Tang was however, unsuccessful in rebutting the statutory presumption.  In a Judgment dated

11  July  2013  (“Judgment”)  I  made  a  profit  forfeiture  order  for  $360,000.1

Paragraphs [58] and [59] of that Judgment stated that:

[58]   The Commissioner is entitled to costs, together with disbursements as fixed by the Registrar. In my view, costs should be fixed on a category

2B basis.

[59]    I encourage counsel to reach agreement on costs. If costs cannot be agreed, and the Commissioner wishes to pursue recovery of costs, then any memorandum from the Commissioner is to be filed and served within 15 working days of this judgment. Any memorandum that Mr Tang wishes to file is to be filed within a further 10 working days. I then propose to deal with the issue of costs on the papers.

[4]      After failing to reach agreement on costs the Commissioner has (somewhat belatedly) filed a costs memorandum.  No memorandum has been filed in response, and counsel for Mr Tang has advised the Registry that he has no instructions from

Mr Tang on costs issues.

1      Commissioner of Police v Tang [2013] NZHC 1750.

[5]      The Commissioner seeks costs on a 2B basis, itemised as follows:

Daily rate     $1,990.00

Item  Particulars  Days      Amount

37        Filing forfeiture application and affidavits                   2         $3,980.00

11         Preparation for first case management conference       0.4      $   796.00

12        Appearance at first mention on 28 November 2012     0.2      $   398.00

11 &     Preparation for and appearance at teleconference

12        13 February 2013  0.6      $1,194.00

40        Preparation of written submissions  1.5      $2,985.00

42       Appearance at substantive hearing  0.5      $   995.00

[6]      The total sum sought is $10,348 (5.2 days).

[7]      As the successful party the Commissioner is clearly entitled to costs.   As indicated at the time of the Judgment, in my view costs on a category 2B basis are appropriate. I have checked the Commissioner’s costs calculations, which are correct and in accordance with the High Court Rules.

[8]      I accordingly award costs in the amount  of $10,348.00 in favour of  the

Commissioner.  I note that the Commissioner does not seek disbursements.

Katz J