Hall v Chief Executive of Land Information New Zealand HC Auckland CIV 2005-404-7222

[2010] NZHC 1036

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-007222

BETWEEN  JOHN HALLIDAY HALL Appellant

ANDTHE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Respondent

Hearing:         (On the papers)

Counsel:         P J Dale and A H J Commons for the Appellant

M T Parker for the Respondent

Judgment:      24 May 2010 at 4:00 pm

[COSTS] JUDGMENT OF THE COURT

This judgment was delivered by Justice Wylie

On Monday, 24 May 2010 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors/Counsel:

Hornabrook Macdonald Lawyers, P O Box 91 845, Victoria Street West, Auckland 1142

Crown Law, P O Box 2858, Wellington 6140

P J Dale, P O Box 130, Shortland Street, Auckland 1140

J H HALL V THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND HC AK CIV 2005-404-

007222  24 May 2010

[1]      On 9 December 2009, Mr G J Horsley and I dismissed the appellant’s appeal against a decision of the Land Valuation Tribunal.  We recorded that the respondent was entitled to costs and reasonable disbursements and that costs were to be fixed on a 2B basis.   In the event that counsel were unable to settle costs, we directed the parties to file the appropriate memoranda.

[2]      Costs on a 2B basis total $6,600.

[3]      By memorandum dated 21 December 2009, the respondent sought increased costs.  It submitted that the amount recoverable under the schedule in the High Court Rules did not provide it with appropriate reimbursement.  The respondent submitted that the preparation time allowed by the rules of 1.5 days is inadequate given the volume  of  evidence  which  had  to  be  considered,  pursuant  to  r  14.6(3)(a).    An increase to three days for preparation was sought, bringing the total costs to $9,060.

[4]      On 23 December 2009, the appellant filed a memorandum in response.  He opposed the request for increased costs and submitted that scale costs should be ordered.  No issue was taken with the respondent’s calculation of scale costs, or the disbursements sought by the respondent.  The appellant argued that increased costs are not justified.  He submitted that:

a)        the case was not unduly complex;

b)        the position he took was tenable and supported by evidence; and c)    the respondent’s written and oral submissions were brief.

[5]      Due an oversight on the part of the Registry, the memoranda were only referred to me on 10 May 2010.   That oversight is regrettable.   The Registry has already sent an email to counsel apologising for the oversight.   Mr Horsley and I record our regret that there has been such a delay in dealing with this simple issue.

[6]      First we note that we directed the costs should be fixed on a 2B basis.  The only issue which we envisaged might be referred to us was quantification in the

event of dispute.  The respondent is in effect asking us to revisit our direction when it has not lodged a notice of appeal.

[7]      This issue aside, we observe that while costs are in the discretion of the Court, generally the determination of costs should be predictable and expeditious — see rr 14.1 and 14.2 of the High Court Rules.   In appropriate cases, however, the Rules permit the Court to order increased costs pursuant to r 14.6(1)(a).    Such an order can be made at any stage of the proceeding: r 14.6(2).  The circumstances in which the Court can order increased costs are set out in r 14.6(3).

[8]      In this case, the respondent relies on r 14.6(3)(a), which reads:

(3)      The court may order a party to pay increased costs if—

(a)       the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

…

[9]      The step in question is that for preparation for appeal (step 15).  The scale provides for 1.5 days regardless of the band (see sch 3 of the High Court Rules). The respondent argued that the volume of evidence in this case was such that the work required to prepare for the hearing was not adequately captured by the amount of time allocated for preparation for the appeal hearing.  In support, Mr Parker cited New Zealand Fish and Game Council v Attorney-General,[1]  where increased costs were granted on this basis.

[1] HC Wellington CIV-2008-485-2020, 2 October 2009 per Simon France J

[10]     Here, the respondent has not provided any identifiable reason to justify its assertion that the preparation required in this case was such that the time normally allocated on a 2B basis is inadequate.  While there was a lot of material put before the Court by the appellant, all of that material had been produced before the Land Valuation Tribunal.  The respondent should have been familiar with it.  Further, the material was not referred to in any great detail by the respondent before us.  We are not convinced that the volume of evidence in this case was so large as to warrant an uplift in scale costs.   Neither in our view is it appropriate to consider the time

actually spent or the actual costs incurred: see r 14.2(e) and Holdfast NZ Ltd v

Selleys Pty Ltd.[2]

[2] (2005) 17 PRNZ 897 (CA).

[11]     In  our  view,  it  would  be  inappropriate  to  award  increased  costs  to  the respondent in the present case.  The respondent is awarded costs in the sum of

$6,660, together with disbursements of $1,560.

Wylie J  G J Horsley