Harvey v Tasman District Council

[2020] NZHC 38

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-27

[2020] NZHC 38

BETWEEN

MICHAEL HENRY HARVEY

Appellant

AND

TASMAN DISTRICT COUNCIL

Respondent

On the papers:

Counsel:

M H Harvey in person

E B Moran for Respondent

Judgment:

29 January 2020

JUDGMENT OF CHURCHMAN J (COSTS)

[1]                By judgment dated 5 November 2019, I granted the appellant’s application for leave to appeal out of time but dismissed the application for leave to appeal the High Court decision. The respondent had not opposed the application for leave for extension for time but did oppose the application for leave to appeal itself.

[2]                By memorandum dated 11 November 2019, the respondent sought scale costs on a 2B basis in the sum of $3,345.

[3]                By memorandum dated 20 December 2019, the appellant opposed the application for costs. Much of the content of the memorandum focused not on the rules relating to costs but on issues that had arisen in the District Court and High Court hearings.

MICHAEL HENRY HARVEY v TASMAN DISTRICT COUNCIL (COSTS) [2020] NZHC 38 [29 January 2020]

[4]                The appellant also advanced the argument that the respondent had misled the Court.

[5]                The only paragraph in the memorandum which directly addressed the application for costs was [31] which said:

[31] In real terms we do not really believe that Justice Churchman has any other option than awarding costs to the benefit of the respondent, on the basis that the decision did go against us.

Discussion

[6]                In considering an application for costs, the Court is obliged to apply the principles set out in r 14.2 of the High Court Rules 2016 (HCR).

[7]The general principles can be summarised as being:

(a)the primary principle is that the unsuccessful party should pay the costs of the successful party. This is sometimes described as being a rule that costs follow the event;

(b)there should be predictability, consistency and expediency in the fixing and payment of costs; and

(c)that the rates set out in the scale to the HCR should generally be applied on the basis that they are “reasonable”.

[8]                Notwithstanding the general principles set out in the HCR, the Court has a discretion to depart from the general principles where it is just to do so.

[9]                As the appellant conceded in his memorandum, in this case, in the absence of any identified circumstances which would justify the Court departing from the general principles, it is appropriate for costs to follow the event.

[10]            The claim by the respondent in the sum of $3,345 is in accordance with the scale and the categorisation of the proceedings as 2B is appropriate.

Outcome

[11]            Costs are awarded in favour of the respondent in relation to the unsuccessful application for leave to appeal in the sum of $3,345.

Churchman J

Solicitors:

DLA Piper, Wellington for Respondent cc:     M N Harvey