Commissioner of the New Zealand Police v Veevers (aka Williams)

[2015] NZHC 1126

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-142 [2015] NZHC 1126

IN THE MATTER OF

an application pursuant to ss 22, 24 and 25

the Criminal Proceeds (Recovery) Act
2009

BETWEEN

THE COMMISSIONER OF THE NEW ZEALAND POLICE Applicant

AND

GIOVANNI SHANE ROBERT VEEVERS (AKA WILLIAMS) First Respondent

KELLY BARBARA VEEVERS (AKA WILLIAMS)

Second Respondent

Hearing:

25 May 2015

(On the papers)

Appearances:

H McKenzie for Applicant
No appearance by or for Respondents

Judgment:

25 May 2015

JUDGMENT OF MANDER J

[1]      The Commissioner of Police (the Commissioner) made application under the Criminal Proceeds (Recovery) Act 2009 (the Act) to restrain a property and motor vehicle owned by the respondents.

[2]      On 16 June 2014, I made orders in favour of the Commissioner restraining a property  situated  at  34  Sidey  Quay,  Kaiapoi;  and  restraining  a  Chrysler  motor

THE COMMISSIONER OF THE NEW ZEALAND POLICE v VEEVERS [2015] NZHC 1126 [25 May 2015]

vehicle. 1  I declined an application by the Commissioner for the sale of the motor vehicle.2

[3]      The Commissioner now applies for costs on a 2B basis in relation to his on notice application.  He does not seek to recover disbursements.  The Commissioner submits that costs should follow the event in the ordinary way, and that the 2B categorisation is appropriate in the circumstances.  The total costs claimed amount to

$10,845.50. An itemised schedule of those costs is attached to this judgment.

[4]      No opposition has been filed to the Commissioner’s application.   Repeated opportunities have been afforded to the respondents, who are now self-represented, to file a reply to the Commissioner’s costs application and advise their position or indicate any matters they may wish the Court to take into account.

[5]      As is apparent from s 10(1) of the Act, the majority of proceedings brought under the legislation are civil in nature.   The current proceedings fall within that description, therefore the civil costs regime in the High Court Rules applies.

[6]      Rule 14.1 of the High Court Rules makes plain that costs are at the discretion of the Court.  However, as is apparent from the scheme provided by the Rules and the principles which are to be applied to the determination of costs, as set out in r 14.2, ordinarily it will be the responsibility of the party who fails with respect to the  proceeding  or  interlocutory  application  to  pay  the  costs  of  the  party  who succeeds.

[7]      The basis for the Commissioner’s application is that he succeeded in his application to restrain the property at 34 Sidey Quay and the Chrysler motor vehicle. The Commissioner’s application for the immediate sale of the vehicle did not, however, succeed, and the Commissioner acknowledges that this application was closely allied to success on the application for restraint.

[8]      It is also submitted on the Commissioner’s behalf that costs on a 2B basis are

appropriate, as the proceedings were of average complexity, requiring counsel of

1      The Commissioner of the New Zealand Police v Veveers [2014] NZHC 1344 at [59] and [61].

2 At [70].

skill and experience considered average in the High Court, and a normal amount of time  is  considered  to  be  reasonable.    An  award  of  scale  costs  based  on  the appropriate daily recovery rate for category 2 proceedings would not exceed the costs actually incurred by the Commissioner.

[9]      The appropriate daily recovery rate for category 2 proceedings provided by Schedule 2 of the High Court Rules is $1,990.  The Commissioner seeks costs on the preparation of the on notice application for restraint, which included drafting and preparing the on notice application and supporting submissions, together with affidavits in support.  The respondents did not oppose the application to restrain the property at 34 Sidey Quay.   However, it was necessary to prepare submissions in response to the respondents’ opposition to the restraint of the Chrysler motor vehicle, and  a  further  affidavit  was  also  prepared.    Two  appearances  were  required  by counsel, the first at a case management hearing, and the second for the purposes of the substantive restraint hearing.   In total, 5.45 days or part days are claimed in respect of each step in the proceeding, for a total cost of $10,845.50.

[10]     In the absence of any opposition, I am unable to discern any reason for the Commissioner’s application to be approached otherwise than in accordance with the normal principles that apply.  In the context of proceedings brought under the Act, a common order is to award costs on a 2B basis.3

[11]   I am of the view that costs should follow the event in favour of the Commissioner in the normal way.  The costs sought reflect the fact the application to restrain the Sidey Quay property was not ultimately opposed, and the hearing was confined to the Chrysler motor vehicle.

[12]     As noted, the Commissioner was not completely successful in his application, as I declined to order the sale of the motor vehicle.  There should therefore be some adjustment to the costs award to reflect the respondents’ partial success in resisting

that part of the Commissioner’s application.

3      See Commissioner of Police v Brennan [2014] NZHC 416 at [20]; Commissioner of Police v Tang [2013] NZHC 2595 (giving effect to the earlier substantive judgment [213] NZHC 1750 at [58]-[59]); Commissioner of Police v Dryland [2013] NZCA 247 at [44].

[13]     Accordingly, I make an award of costs in favour of the Commissioner on the basis of the table prepared on his behalf, attached hereto.   I, however, make a deduction of 25 per cent to reflect the refusal of the Commissioner’s application for the Chrysler motor vehicle to be sold. That results in an award of costs on a 2B basis in  favour  of  the  Commissioner  in  the  sum  of  $8,134.12  ($10,845.50  x  .75  =

$8,134.12).

Solicitors:

Raymond Donnelly & Co, Christchurch