Harvey v Tasman District Council - [2019] NZHC 2492

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-27

[2019] NZHC 2492

IN THE MATTER of an appeal from a civil decision of a District Court Judge to a Judge of the High Court

BETWEEN

MICHAEL HENRY HARVEY

Appellant

AND

TASMAN DISTRICT COUNCIL

Respondent

On the papers:

Counsel:

M H Harvey in Person

A G Stallard for Respondent

Judgment:

1 October 2019

JUDGMENT OF CHURCHMAN J (COSTS)

[1] By way of judgment dated 16 August 2019, I dismissed the appeal by the appellant in this matter and invited the parties to agree costs. In the absence of agreement, the respondent had 14 days to file submissions with the appellant having 14 days to reply.

[2]Unfortunately, agreement was not possible.

[3] By memorandum dated 21 August 2019, Mr Stallard, for the respondent, sought costs totalling $9,560. The respondent calculated costs on a band B, Schedule 2 basis. That is the classification for matters taking a normal amount of time and being of average complexity. It was submitted that these proceedings were not a simple debt recovery matter which might have been suitable for a band A allocation but, given the

HARVEY v TASMAN DISTRICT COUNCIL (COSTS) [2019] NZHC 2492 [1 October 2019]

issues raised on appeal, including the inter-relationship between the Resource Management Act, the Local Government Act, and the General Law of Contract/Assumption of Liability, band B, Schedule 2 costs were appropriate.

[4] By way of memorandum dated 5 September 2019 filed by the appellant in person, Mr Harvey submitted that no costs award should be made against him.

[5]A number of factors were advanced as justifying such an approach:

(a)alleged errors of fact in the judgment;

(b)inadequacies of his counsel at hearing;

(c)a rehearsal of the arguments advanced in the substantive hearing in relation to the deficiencies in the respondent’s accounting practices and lack of transparency; and

(d)what was described as “retribution” against the appellant because he challenged the Council’s accounting and the legal validity of their invoices.

[6] Mr Harvey also referred to the fact that the costs that he had incurred to date without even considering the costs in relation to his appeal were significantly greater than the actual sum in issue.

Analysis

[7] The principles in relation to costs are set out in r 14.2 of the High Court Rules 2016 (HCR). They proceed on the basis that costs follow the event. In other words, there is a general principle that a party who fails in respect of a proceeding such as an appeal should pay costs to the other party. The award of costs should reflect the complexity and significance of the proceedings, and costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the appeal.

[8] HCR 14.2 also provides that, so far as possible, the determination of costs should be predictable and expeditious.

[9] Notwithstanding these general principles, it is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2492
Decision Date: 1 October 2019

CaseChat Overview and Summary

The case of Harvey v Tasman District Council involved an appeal from the District Court to the High Court by Michael Henry Harvey against the Tasman District Council. The dispute centred on an appeal from a civil decision made by a District Court Judge, with the High Court Judge, Churchman J, overseeing the appeal. The appellant, Mr Harvey, challenged the decision of the District Court, which had ruled in favour of the respondent, the Tasman District Council. Mr Harvey argued that the proceedings should not have been pursued and that the Council's accounting practices were deficient. The core legal issues before the court were the proper allocation of costs under the High Court Rules 2016 (HCR) and whether the respondent was entitled to costs following the dismissal of the appeal. The court considered whether the costs requested by the respondent were appropriate given the complexity and significance of the proceedings. The respondent, Tasman District Council, sought costs totalling $9,560, calculated on a band B, Schedule 2 basis, which is applicable to matters of average complexity and taking a normal amount of time. In contrast, Mr Harvey argued against any costs award, citing various factors including alleged errors in the judgment, deficiencies in his legal representation, and what he perceived as retribution for challenging the Council's accounting and the validity of their invoices. The court examined the principles governing costs awards as per r 14.2 of the HCR, which states that costs generally follow the event, reflecting the complexity and significance of the proceedings. The court also noted the discretion to modify costs awards where necessary in the interests of justice. Ultimately, the court found that the costs sought by the respondent were appropriate given the nature of the appeal and the respondent's right to costs following the dismissal of the appeal. The court rejected Mr Harvey's arguments that costs should not be awarded, particularly his claims of errors in the judgment and retribution. The court concluded that the costs should be assessed based on the conduct of the parties during the litigation, not before it. The court awarded costs to the respondent in the sum of $9,560, as calculated in accordance with the principles set out in HCR 14.2(1).

Orders