Crequer v Alpine Energy Limited

[2024] NZHC 3583

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2023-476-000024

[2024] NZHC 3583

BETWEEN

DAVID OWEN CREQUER

Plaintiff

AND

ALPINE ENERGY LIMITED

Defendant

On the papers:

Counsel:

Plaintiff in person

R J Gordon for Defendant

Judgment:

27 November 2024

JUDGMENT OF GRAU J

[Costs decision]

[1]    On 24 October 2024, I granted the respondent’s application to strike out a judicial review commenced by the applicant, Mr Crequer.1 I awarded costs to Alpine Energy Ltd (AEL) on a 2A basis. The parties have been unable to agree as to the steps and disbursements to be included in the costs award, and so AEL has filed its costs table for the Court’s approval.

[2]    Costs are at the discretion of the Court.2 Having considered the memoranda of both parties as to costs, I am satisfied that $10,017.94 in costs and disbursements should be awarded to the respondents, as set out in the draft interlocutory order and schedule of costs attached and marked “C” to AEL’s memorandum dated 11 November 2024.

1      Crequer v Alpine Energy Ltd [2024] NZHC 3107.

2      High Court Rules 2016, r 14.1.

CREQUER v ALPINE ENERGY LIMITED [COSTS] [2024] NZHC 3583 [27 November 2024]

[3]    Mr Crequer disputes AEL’s costs on a number of bases, which I will address in turn. First, he says that he should not have to pay costs for steps taken in the proceeding other than those in relation to the strike out application itself. In other words, Mr Crequer does not believe he should have to pay the costs related to AEL’s commencement of the defence or steps taken in respect of events that were not the strike out hearing itself (for example, preparation for the first case management conference).

[4]    This is simply not the way that costs awards work. The fact that Mr Crequer’s claim was struck out does not mean that AEL cannot receive an award of costs for the steps it took before the interlocutory hearing; that would be to ignore the realities of litigation. AEL was required to file a notice of defence to Mr Crequer’s judicial review claim within 25 working days and, as is necessarily the case, an interlocutory application for strike out cannot be made without a defended proceeding being on foot. Put simply, AEL had to incur all the costs that it did in order to respond to Mr Crequer’s claims; AEL is not seeking to claim costs in respect of steps which have not happened. I note also that r 14.8 of the High Court Rules provides that the costs associated with an interlocutory application are to be fixed when the application is determined, with the general course being that all other costs are determined at the end of the substantive proceedings.3 A successful strike out application is the end of the substantive proceedings, so all costs incurred to date by AEL fall to be considered.

[5]    Mr Crequer also challenges the claimed disbursements set out in AEL’s schedule of costs. He says that my decision awarded AEL “costs” only, not “costs and disbursements”. However, an award of costs is understood to mean that a successful party is entitled not only to its costs, but also to the reasonable disbursements it has incurred in the proceeding.4 The High Court Rules 2016 themselves state that a disbursement “must, if claimed and verified, be included in the costs awarded for a proceeding”.5  AEL is accordingly entitled to claim is reasonable disbursements, and I am satisfied that it has done so.

3      See the discussion in Glenthorne Station Ltd v University of Canterbury [2024] NZHC 1994.

4      David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at 149.

5      High Court Rules, r 14.12(2).

[6]    Next, Mr Crequer says that his notice of opposition to the strike out application was not accepted for filing, with the result that the strike out application was unopposed, so he should not have to pay the costs associated with it. Again, this submission ignores the reality of what occurred. Notwithstanding that Mr Crequer’s notice of opposition was not accepted, he nevertheless filed submissions in opposition to AEL’s application and appeared at the hearing before me. Even putting these facts to one side, the submission assumes that a successful party will be entitled to costs for an unopposed interlocutory application, which is not the case.6

[7]    Finally, Mr Crequer challenges the disbursements AEL claims. He does not believe travel expenses should have to be paid. He says it was AEL’s choice to engage a lawyer that lived out of town and that was not necessary. Travel expenses for out- of-town counsel are however available as a qualifying disbursement where there is justification for their instruction and their travel expenses were reasonable.7 I agree with AEL that it would not have made sense to brief other Christchurch-based counsel to attend the hearing instead of spending a modest amount ($251.36 excluding GST) to send the solicitor who had prepared the material to the hearing. The travel expenses can therefore be claimed.

[8]    For these reasons, I order that Mr Crequer pay the $10,017.94 in costs and disbursements, as set out in AEL’s memoranda noted above.

Grau J

Solicitors:
MinterEllisonRuddWatts, Wellington for Defendant

6      See Clotworthy v Clotworthy [2023] NZHC 287 at [11].

7      See Mary Moody Family Trust Board v Attorney-General [2016] NZHC 755 at [13]–[14]; Siemer v Legal Complaints Review Authority [2024] NZCA 220 at [14]; and Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC) at [25].