Deliu v Connell

[2016] NZHC 1080

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-00812 [2016] NZHC 1080

UNDER

the Judicature Amendment Act 1972 and

Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

FRANCIS CATALIN DELIU Plaintiff

AND

RICHARD JOHN CONNELL First Defendant

LEGAL COMPLAINTS REVIEW OFFICER

Second Defendant

NEW ZEALAND LAW SOCIETY Third Defendant

Hearing:	On the papers
Counsel:	Plaintiff in person P M Fee and L M Fraser for first defendant
Judgment:	23 May 2016

COSTS JUDGMENT OF PALMER J

Solicitors:

Fee Langstone, Auckland

And to:

F C Deliu, Auckland

DELIU v CONNELL & ORS [2016] NZHC 1080 [23 May 2016]

[1]      Mr Frank Deliu complained to the New Zealand Law Society (NZLS) about the conduct of Mr Richard Connell.   The National Standards Committee determined not to take further action on the complaint.  The Legal Complaints Review Officer (LCRO) declined an application for review of that decision.  It awarded costs against Mr Deliu in the amount of $5,900.  In his application for judicial review of both of the LCRO’s decisions, Mr Deliu succeeded in challenging the costs decision on one

ground but succeeded in none of his four challenges to the substantive decision.1

The costs decision was found unreasonable and not to take into account relevant considerations and was quashed.

[2]      Mr Deliu now seeks costs against Mr Connell for the judicial review.2

[3]      As set out in Rule 14.2 of the High Court Rules costs follow the event.  A losing party pays the winning party a contribution towards their legal costs.  As I have noted in another professional misconduct context, in McCaig v A Professional Conduct Committee No 2, the question of who has won and who has lost litigation is not always straightforward.3    That was an appeal of penalty only.   I said “[w]hat matters is the extent of the reduction in penalty when viewed realistically or, in the words of the Court of Appeal in Bond, ‘a realistic appraisal of the end result’”.4

[4]      Here, the end result is that Mr Deliu succeeded in quashing the costs award he would otherwise have incurred.  If the proceedings had only challenged that he would have succeeded entirely.

[5]      But the proceedings also concerned Mr Deliu’s challenges to the substantive decision of the LCRO.   On that, Mr Deliu failed.   I do not agree that was “mere background” to the costs claim.  The challenges to the substantive decision occupied

a significant portion of the parties’ submissions, the hearing and the judgment.

1      Deliu v Connell [2016] NZHC 361.

2      On the basis of an agreement reached between them, Mr Deliu does not seek costs against the

NZLS, the third defendant.

3      McCaig v A Professional Conduct Committee No 2 [2016] NZHC 306 at [4].

4      At [5], citing Packing in Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2003) 16

PRNZ 958 (CA).

[6]      I indicated in my original decision that I was inclined to let the costs of the proceedings lie where they fell.5   Having considered submissions of both parties on the matter I now confirm that decision.  This outcome on costs recognises that Mr Deliu succeeded in his challenge to one of the LCRO’s decisions but failed in the other.  Conversely Mr Connell failed in his defence of one of the LCRO’s decisions but succeeded in the other.  If the two challenges had been taken separately Mr Deliu

and Mr Connell would each have been awarded costs and would each have paid costs. They enjoyed a relatively equal measure of success.

Palmer J

5 At [73].