Grey District Council v Banks

[2015] NZHC 1478

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2012-418-000005 [2015] NZHC 1478

BETWEEN

GREY DISTRICT COUNCIL

Applicant

AND

DOUGLAS BANKS First Respondent

CHRISTINE SANDRA BANKS Second Respondent

Hearing:	Dealt with on the papers
Judgment:	29 June 2015

JUDGMENT OF GENDALL J

Introduction

[1]      Following the hearing in this Court on 3 June 2015 of an application by the respondents  for  leave  to  review  a  decision  of Associate  Judge  Matthews  dated

31 March 2015 relating to a costs order made by him against the respondents, I

issued a judgment on 5 June 2015.

[2]      In that 5 June 2015 judgment:

(a)       I granted leave to the respondents to extend time for their application for review;

(b)      I    held     that    the     respondents’    application     for     review     of

Associate Judge Matthews’ decision failed; and

(c)       I reserved costs on that review application.  In doing this, I directed that if costs were sought by the applicant and the parties were unable

GREY DISTRICT COUNCIL v BANKS [2015] NZHC 1478 [29 June 2015]

to   reach   agreement   on   that   question,   then   they   might   make submissions by way of memoranda filed in this Court.

[3]      Counsel for the applicant has now filed a memorandum as to costs dated

12 June 2015.  The respondents have also filed their memorandum as to costs, this one dated 14 June 2015.   Both memoranda indicate that, while the parties have corresponded on the question of costs, they have not been able to reach agreement and hence memoranda have been filed.

[4]      As  to  this  issue,  the  applicant  does  seek  an  order  for  costs  against  the respondents in respect of its successful opposition to the respondents’ application for leave to review Associate Judge Matthews’ decision.  Costs are sought on a category

2 band B basis in terms of the scale set out in the High Court Rules, this being calculated as amounting to $5,472.50 for costs plus disbursements of $160.00

[5]      The respondents oppose any award of costs against them here.

Legal principles

[6]      Turning now to the legal principles involved here, the starting point on any costs consideration must be r 14.2(a) High Court Rules which provides:

14.2     Principles applying to determination of costs

The following general principles apply to the determination of costs: (a)     The party who fails with respect to a proceeding or an

interlocutory application should pay costs to the party who

succeeds…

[7]      Addressing this rule, McGechan on Procedure at para HR14.2.01 notes:

This rule 14.1(a) encapsulates the primary principle that “costs follow the event” unless particular considerations dictate otherwise.

Parties’ submissions

[8]      Here,  counsel  for  the  applicant  presents  a  simple  argument.    He  simply submits  that  there  is  nothing  which  might  remove  this  case  from  the  ordinary principle that costs follow the event.  He notes that my decision of 5 June 2015 held

that the respondents’ application for review failed, and thus he says the respondents, as the unsuccessful parties, should pay costs to the applicant which successfully opposed the application.

[9]      In response to these submissions, the respondents state that on 23 July 2015 the Court of Appeal is to hear their appeal against judgments of Fogarty J given on substantive proceedings between these parties in this Court on 19 June 2013 and

5 September 2013.  In these judgments on the respondents’ substantive proceeding, it seems Fogarty J held in favour of the applicant and in doing so he also gave a costs judgment in the applicant’s favour.

[10]   The matter which was before Associate Judge Matthews related to an interlocutory application for discovery of documents said to be critical to this appeal to the Court of Appeal.  This discovery application failed.  I repeat, it was the award of costs against the unsuccessful respondents which Associate Judge Matthews made which was the subject of the application to this Court by the respondents for leave to review which I heard on 3 June 2015.

[11]     In their 14 June 2015 costs memorandum filed in this Court the respondents put forward the following specific matters:

4.3We  had  offered  to  settle  with  Council  (the  applicant)  on  the following options and now place these options before the Court to consider:

4.3.1We  would  abandon  further  legal  action  on  costs  in  this matter if the parties agree to let costs lay where they fall; or

4.3.2Given the closeness of the appeal hearing, 23 July 2015, we agree to all associated costs being paid after the appeal is determined; or

4.3.3We make regular payments of $10 per week until the appeal is determined at which time the weekly payments can be reviewed;   this is necessary given our present income and the costs such as travel in respect of the appeal; or

4.3.4If   the   above   and   any   other   reasonable   options   are unacceptable to Council, we put forward a memorandum relying upon the above options as contained within our correspondence  dated  10  and  11  June  2015  and  all  the matters referred to within this memorandum.

5.        Outcome sought

5.1For all the above, we seek a fair and just consideration by the Court of the options contained in 4.3 above, in determining costs in this matter;   we accept we are at the complete mercy of this Court and hope that the closeness and  seriousness of the  appeal hearing will be considered relevant to this decision.

My decision

[12]     In considering the matter now before the Court, again I am mindful of the fact that the respondents are self represented.

[13]     Nevertheless, it seems clear that there is little before the Court to justify any departure here from the long-accepted principle as to the starting point for cost considerations.  As I have noted this principle, set out in r 14.2(a), that costs should follow the event, means that an unsuccessful party should generally be liable to meet costs on proceedings before this Court.  There is nothing that has been put before me of any kind in this case to suggest a decision should be made otherwise.  An order for costs must therefore follow in favour of the applicant.

[14]     So far as the quantum of that costs award is concerned, the respondents in their 14 June 2015 memorandum have raised no issues concerning the $5472.50 amount assessed by the applicant as category 2B costs in this case.

[15]     Nevertheless, I now turn to consider that quantum claim.

[16]     The applicant’s calculation of this quantum is set out in a schedule annexed to her memorandum  dated  12  June 2015  which,  for convenience,  I set  out  in  the schedule attached to this judgment, marked “A”.

[17]     On this costs claim, I say at the outset that I am satisfied category 2B costs are appropriate in this case with a daily rate claimed at $1990.00 being appropriate in terms of Schedule 2 of the High Court Rules.  I am also satisfied that the amounts claimed in allocated days and part-days for the work set out in this schedule is appropriate.  The result is that total category 2B costs of $5472.50 are to be awarded here.

[18]     So far as the disbursements claim is concerned, this totals $110.00 for filing of the notice of opposition to the respondents’ interlocutory application together with

$50.00 for filing judgment for sealing.  Both these claims are in order.

[19]     For all the reasons outlined above, the applicant here is entitled to the order for   costs   and   disbursements   against   the   respondents   with   respect   to   their unsuccessful application for leave to review the judgment of Associate Judge Matthews.   An order for total category 2B costs of $5472.50 together with disbursements of $160.00 is to follow.

[20]     I am satisfied in this case, however, that as the respondents request at para

4.3.2 of their 14 June 2015 memorandum (noted at [11] above), an order staying the requirement to pay these costs and disbursements should now be made. The effect of this is to ensure that these amounts will not be required to be settled until after the

23 July 2015 appeal to the Court of Appeal noted at para [9] above is determined.

Outcome

[21]     The applicant’s present costs and disbursements application succeeds.   An order is  now made  that  the respondents  are to  pay to  the applicant  costs  on  a category 2B basis totalling $5472.50 together with disbursements totalling $160.00 on the respondents’ unsuccessful application to this Court for leave to review the judgment of Associate Judge Matthews.

[22]     A further order is made staying the requirement for the respondents to pay these amounts to the applicant until that date which is five working days after the date the substantive appeal between these parties to the Court of Appeal (due to be heard on 23 July 2015) is determined.

...................................................

Gendall J

Solicitors:

Simpson Grierson, Wellington

Copy to Respondents

“A”

COSTS PURSUANT TO SCHEDULE 3 AND SCHEDULE 4, HIGH COURT RULES

Steps undertaken	Allocated days or part days (Band B)	Appropriate daily rate (Category 2)	Amount
Filing opposition to interlocutory application dated 21 May 2015 (23)	0.6	$1,990.00	$1,194.00
Appearance at mentions hearing on 26 May 2015 (12)	0.2	$1,990.00	$398.00
Preparation of written submissions (24)	1.5	$1,990.00	$2,985.00
Appearance at hearing of defended application by counsel on 3 June 2015 (25)	0.25	$1,990.00	$497.50
Sealing judgment (29)	0.2	$1,990.00	$398.00
Total Costs	$5,472.50
Disbursements (High Court Fees Regulations 2013)	Amount
Filing notice of opposition dated 21 May 2015	$11.00
Filing judgment for sealing	$50.00
Total disbursements	$160.00