Commissioner of Police v Warner

[2013] NZHC 1488

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-3665 [2013] NZHC 1488

BETWEEN	THE COMMISSIONER OF POLICE Applicant
AND	GARTH RAYMOND WARNER First Respondent
AND	LUKE MANKELOW Second Respondent

Hearing:                   On the papers

Judgment:                20 June 2013

COSTS JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor Auckland

P Kaye, Auckland

THE COMMISSIONER OF POLICE v WARNER [2013] NZHC 1488 [20 June 2013]

[1]      In a judgment delivered on 20 December 2012, I granted the applicant’s

application  for  restraining  and  asset  forfeiture  orders  in  respect  of  the  sum  of

$90,490 located in the boot of a Subaru motor vehicle.

[2]      Mr Warner had claimed that the cash formed part of a loan from a Mr Forman who made an application for relief, seeking in effect, the return of the money to him.

[3]      I made an order for forfeiture against Mr Warner and declined Mr Forman’s

application for relief.

[4]      Costs were reserved, I directed that counsel may file memoranda if they were unable to agree.

[5]      Costs are not agreed;  counsel have filed memoranda.

[6]      Counsel for the applicant claims costs of $8,855.50 on a Band 2B basis. Mr Kaye for Mr Warner, has filed a memorandum in which he makes the following points:

(a)      The charges actually faced by Mr Warner in the District Court were minor and only one was drug-related.   It following the finding of a small quantity of methamphetamine in Mr Warner’s possession;

(b)The sum claimed by the Crown would seem to have no connection with the charges;

(c)      This type of proceeding is something of a hybrid between civil and criminal proceedings;

(d)      Mr Warner has no means of paying the sum claimed by the applicant.

[7]      Against that background, Mr Kaye submits that it would be proper simply to direct that costs lie where they fall.

[8]      Although Mr Kaye appeared for Mr Forman at the hearing of the earlier application, he has no instructions from him on the question of costs.

[9]      This is a civil proceeding, although I accept that it arises out of alleged criminal behaviour.  Questions of costs routinely arise in cases such as these, which are relatively common.  Costs are normally dealt with on the civil basis, in reliance of Part 14 of the High Court Rules.  I am not aware of any case in which costs have been declined because there was a criminal flavour to the proceeding.  Mr Kaye does not cite any authority for his contention that it would be proper to decline costs on that ground.

[10]     Although I accept that Mr Warner may be unable to meet the amount of the order for costs, that is an enforcement problem for the applicant, rather than a reason to decline to make an award at all.

[11]     Mr Forman has taken no step to oppose an order for costs against him.  He was an active party at the hearing of the proceedings, giving detailed evidence in support of his claim to have lent the money to Mr Warner.  I rejected that evidence.

[12]     Mr Harborow seeks an order against Messrs Warner and Forman, jointly and severally.  I consider such an order to be appropriate.

[13]     There will accordingly be an order directing Mr Warner and Mr Forman, jointly and severally, to pay costs totalling $8,855.50 to the applicant.

C J Allan J