Commissioner of Police v Taunoa

[2025] NZHC 778

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-441-36

[2025] NZHC 778

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application under sections 21 and 24

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

WII ALLAN TAUNOA

Respondent

Hearing:	On the papers
Appearances:	M J M Mitchell for Applicant J M Matheson for Respondent
Judgment:	4 April 2025

JUDGMENT OF McHERRON J

(Costs)

[1]    In my judgment of 20 December 2024 (reissued on 19 February 2025) I concluded that the grounds for an asset forfeiture order were made out.1 However, in exercising the Court’s residual discretion under s 51 of the Criminal Proceeds (Recovery) Act 2009 (the Act), I made an order excluding the full amount of the property that had been seized by the police, $22,100, from the assets forfeiture order. I directed that police must return the seized cash to Mr Taunoa forthwith. I dismissed the Commissioner’s application for a restraining order.

1      Commissioner of Police v Taunoa [2025] NZHC 3989.

COMMISSIONER OF POLICE v TAUNOA [2025] NZHC 778 [4 April 2025]

[2]    In the final paragraph of my decision I  expressed  a preliminary view that  Mr Taunoa is entitled to costs on a 2B basis.2 I said it was not immediately apparent to me that there would be a basis for increasing (or reducing) scale costs. I provided a timetable for submissions if, despite these preliminary views, the parties could not agree on costs.

[3]    Mr Taunoa filed submissions dated 27 January 2025, seeking 2B costs on both the Commissioner’s forfeiture and restraint applications, and indemnity costs from 23 October 2024 until judgment, or alternatively an uplift on scale costs of 75 per cent from 23 October 2024 until judgment.

[4]    The Commissioner filed his submissions on costs on 10 February 2025. The Commissioner pointed out that he had succeeded in respect of the only issue that had been in dispute until the time of the oral hearing, as the Court concluded the money in question was more likely than not to be tainted funds.

[5]    Accepting that Mr Taunoa was successful in respect of his last-minute application for exclusion on the grounds of undue hardship, the Commissioner contends that costs should not be ordered in respect of the entire proceeding, but ought to be limited to those costs incurred in respect of the latter application alone.

[6]    The Commissioner does not accept there is any basis for an award of indemnity costs.

My assessment

No basis for indemnity costs

[7]    I agree with the Commissioner that there is no basis for an award of indemnity costs. The Commissioner was within his rights to bring the application, which would have succeeded but for Mr Taunoa’s last-minute s 51 application. I did not consider there was any basis for criticising the Commissioner for pursuing the forfeiture application in lieu of determination of the restraint application (though I did not need to decide the point).

2 At [57].

Reduction of scale costs is justified

[8]    Having further considered the matter with the benefit of counsel’s submissions, I conclude my preliminary indication of scale costs assessed on a 2B basis did not adequately reflect the principles applicable to the determination of costs, as set out in pt 14 of the High Court Rules 2016.

[9]    The principle that the unsuccessful party should pay costs to the party who succeeds applies because, overall, the Commissioner’s application failed.3 However, that principle is qualified. Relevantly, r 14.7(d) provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if:

although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issues which significantly increased the costs of the party opposing costs;

[10]   And r 14.7(g) provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if:

some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[11]   I consider that these rules justify reducing costs in the present case because, although Mr Taunoa has succeeded overall, he failed in relation to the primary issue, namely that the cash that was located in Mr Taunoa’s garage was tainted property and therefore that grounds for a forfeiture order were made out.

[12]   Moreover, Mr Taunoa’s s 51 application was only advanced (orally) at the hearing with a written application following afterwards. He required an indulgence in the form of extra time to file a written application and evidence to support his unjustified hardship application. This is an additional basis for reducing costs under  r 14.7(g).

[13]   To reflect these matters I propose to reduce the costs that would otherwise be payable under the 2B classification by 75 per cent. This is a 50 per cent reduction to

3      High Court Rules 2016, r 14.2(1)(a).

reflect the failure on the primary issue under r 14.7(d) and a further 25 per cent reduction to reflect the indulgence given to Mr Taunoa in relation to his late s 51 application, under r 14.7(g).

Conclusion

[14]   The calculation of 2B costs as set out in Annexure C of Mr Taunoa’s costs memorandum gives a total of $17,328. The Commissioner advanced no opposition to the calculation of this figure. I therefore order the Commissioner to pay Mr Taunoa 25 per cent of this sum by way of costs: $4,332.

McHerron J

Solicitors:

Elvidge & Partners, Napier for Applicant Castlefinn Law, Auckland for Respondent