Faloon v Commissioner of Inland Revenue

[2013] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2011-470-000878 [2013] NZHC 1296

BETWEEN  CLARENCE JOHN FALOON Plaintiff

ANDTHE COMMISSIONER OF INLAND REVENUE

Defendant

Hearing:                   On the papers

Appearances:           C J Faloon in person the Plaintiff

D Lemmon for the Defendant

Judgment:                4 June 2013

COSTS JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

04.06.12 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FALOON v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 1296 [4 June 2013]

[1]      On 8 November 2011 I issued a judgment granting the Commissioner’s application to strike out a claim brought by Mr Faloon on the grounds that it was mischievous, frivolous, vexatious and an abuse of process.

[2]      At that time I invited submissions on the question of costs.   I intimated indemnity costs would be considered.  However, before these submissions were filed Mr Faloon filed an application for review of my judgment.

[3]      Mr  Lemmon  for  the  Commissioner  submits  that  because  the  review application proceeded as a rehearing of the strike out application that it is reasonable to infer that the Commissioner should be entitled to claim costs for the strike out application on the same 2B basis the review Judge intimated ought be awarded on the review application.

[4]      Mr Lemmon has attached an itemised calculation of scale costs for both the strike out and the review applications.

[5]      In his response Mr Faloon submits that I “had no jurisdiction to hear the application [for strike out] in the presence of an application for an extraordinary remedy in another proceeding of his which was then “properly before the Court for decision”.

[6]      He further submits “as indemnity costs were awarded, and as the plaintiff is given 14 days to reply to any memorandum in relation to costs, [he] submits it is an error of law for Crown Law to seek costs on a 2B basis...”.  The fact that Mr Fallon may have yet another application before the Court does not prevent the Court from fixing costs in relation to a proceeding which has now been concluded.

[7]      Indemnity costs usually significantly exceed costs awarded on a 2B basis.

Judgment

[8]      Costs against Mr Faloon are fixed on a category 2B basis as follows:

(a)       Upon  the  review  application  in  the  amount  of  $7,761.00  and disbursements in the amount of $546.50; and

(b)For  the  strike  out  application  in  the  amount  of  $9,751.00  and disbursements in the amount of $1,048.48.

Associate Judge Christiansen