Green v Watercare Services Limited

[2012] NZHC 2889

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000046 [2012] NZHC 2889

BETWEEN  WILLIAM JAMES GREEN First Appellant

ANDGREEN ENVIRONMENTAL LIMITED Second Appellant

ANDWATERCARE SERVICES LIMITED Respondent

Hearing:         On the papers

Counsel:         N Cooke for Appellants

AM Adams and H Yiu for Respondent

Judgment:      2 November 2012

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Friday, 2 November 2012 at 2pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

N Cooke, PO Box 47 649, Ponsonby, Auckland 1144. Email:  [email protected]
Meredith Connell, DX CP 24063, Auckland 1140.

Email:  [email protected] and  [email protected]

GREEN V WATERCARE SERVICES LTD HC AK CRI-2012-404-000046 [2 November 2012]

Introduction

[1]      On 7 September 2012 I dismissed the appellants’ appeal on all points and asked for submissions on costs.[1]

[1] Green v Watercare Services Ltd [2012] NZHC 2308.

[2] The respondent seeks scale costs of $452 pursuant to ss 8 and 13 of the Costs in Criminal Cases Act 1967 and the Costs in Criminal Cases Regulations 1987. This is on the basis of there being two half days on appeal at $226 per half day. It also seeks additional costs in excess of scale of $5,000.

[3]      The appellants oppose this application and any order for costs.

[4]      The respondent points to a number of alleged procedural failures on the part of the appellants which caused the vacation of a fixture and delay.  The respondent also points out that its actual legal costs were well in excess of $20,000 and that it is only seeking the same level of costs as were awarded in the District Court.

Discussion

[5]      There are a number of unusual features of this appeal which in my view make it appropriate for there to be a modest order as to costs.

[6]      First,  it  must  be  observed  that  the  appeal  was  singularly  lacking  in substantive merit.  As I observed in my decision, Mr Green’s explanations lacked credibility and were indeed were extraordinary.[2]    The legal points that were raised were technical, and while some of them warranted a detailed legal response, they had no connection to the merits of the case.

[2] At [23]–[27].

[7]      There  were  also  procedural  failures  on  the  part  of  the  appellants.    The appellants were slow in filing their grounds of appeal which were ultimately out of time.  Submissions that were meant to be filed by 4 June 2012 were not received by

the respondent until 12 June 2012.   The respondent’s accordingly had to get an

extension of time to file its submissions.  There was then a late notice application by the appellants to call further evidence which was unsuccessful.

[8]      I am satisfied that there were two conferences  required to deal with the appellants’ slow responses to the timetable orders.  Some of the points raised on the appeal  bordered  on  the  frivolous.    In  particular,  the  suggestion  that  Watercare Services Ltd should have provided a sample, and the suggestion that the Judge should have administered to himself a lies warning.

[9]      While the Courts will be conservative in ordering costs against a defendant in a criminal proceeding of this type, I consider that the circumstances are sufficient for a modest order to be made in this case.

[10]     I award costs of $5,000 in favour of Watercare Services Ltd to be paid by the appellants. Thus, the costs order including scale costs will be $5,452.

[11]     There are no costs awarded on this application.

……………………………..

Asher J