Fairley v Auckland Council (formerly North Shore City Council)

[2012] NZHC 2987

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000408 [2012] NZHC 2987

IN THE MATTER OF     the Building Act 2004

AND

IN THE MATTER OF      an application for leave to appeal under s144 of the summary Proceedings Act 1957

BETWEEN  DONALD SAMUEL FAIRLEY Applicant

ANDAUCKLAND COUNCIL (FORMERLY THE NORTH SHORE CITY COUNCIL) Respondent

Hearing:         24 October 2012

Appearances: Applicant in Person with McKenzie Friend

S Masoud-Ansari for Respondent

Judgment:      9 November 2012

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 9 November 2012 at 4.45 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Simpson Grierson, Auckland

Copy to:            Appellant

FAIRLEY V AUCKLAND COUNCIL Costs HC AK CRI-2008-404-000408 [9 November 2012]

[1]      On 24 October 2012 the Court dismissed Mr Fairley’s application for leave to appeal to the Court of Appeal.   Costs were reserved.   The Council have filed full submissions in accordance with the leave reserved.  It seeks costs.  Mr Fairley has chosen not to reply substantively but has simply sent an email to the Registry in which he says:

the lawyer at the last attendance said the council would not be seeking costs because of the david vs goliath nature of the legal resources. please explain how what they say in court can be subsequently changed?

[2]      The short point is that costs were a live issue.  After discussing the matter with  counsel  in  Court  the  Court  reserved  the  issue  and  invited  memoranda.    I propose  to  fix  costs  on  the  basis  of  counsel’s  memorandum  and  Mr  Fairley’s response.

[3]      I note also that in the substantive judgment dismissing Mr Fairley’s appeal from the District Court costs were considered by the Court.  At that time the Court declined  the  Council’s  application  because  the  point  taken  by  Mr  Fairley  was arguable and the Court had found for him on one particular point, even though his appeal was ultimately unsuccessful.

[4]      The position is, however, quite different in relation to this application for leave.  It was substantially out of time and there was no merit in the points that Mr Fairley sough to raise in support of his further appeal.

[5]      Although the Council has suggested costs might be awarded under s 51G of the Judicature Act 1908 I consider the Cost in Criminal Cases Act 1967 must apply to the present case as the criminal proceedings before the District Court were subject to the Summary Proceedings Act 1957.

[6]      Given the Council does not suggest the application for leave was frivolous or vexatious  costs  are limited to  scale  costs,  which,  including disbursements,  total

$538.51. That is an appropriate award in the circumstances.

[7]      Mr Fairley is to pay Auckland Council the sum of $538.51.

Venning J