Holdaway v Auckland Standards Committee 4

[2025] NZHC 223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-309

[2025] NZHC 223

BETWEEN

NESHIA HOLDAWAY

Appellant

AND

AUCKLAND STANDARDS COMMITTEE 4

Respondent

Hearing:	On the papers
Appearances:	N Holdaway, self-represented E Mok for Respondent
Judgment:	20 February 2025

JUDGMENT OF BECROFT J

[As to costs]

This judgment was delivered by me on 20 February 2025 at 11.30am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Meredith Connell, Auckland Copy to: N Holdaway

HOLDAWAY v AUCKLAND STANDARDS COMMITTEE 4 [2025] NZHC 223 [20 February 2025]

Application

[1]This is a civil costs application.

[2] Ms Neshia Holdaway, a then practising lawyer, faced three wide-ranging charges relating to non-compliance with information requests issued by a Standards Committee under s 147(2) of the Lawyers and Conveyancers Act 2006. The Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”) found that her chronic and substantive failures constituted misconduct. Further, that in all the circumstances, striking Ms Holdaway off the roll of barristers and solicitors was the appropriate penalty.

[3]        Ms Holdaway advanced four grounds of appeal against the Tribunal’s “liability” and “penalty” decisions. I heard the appeal on 27 August 2024, and I delivered my decision on 25 November 2024.1

[4]        The four grounds of appeal were all dismissed. I held, in summary, that given the role that information requests play in the maintenance of the integrity of the legal profession and the protection of the public, Ms Holdaway’s non-compliance (for which there was no reasonable excuse) was sufficient to justify a finding of misconduct. I found that the penalty subsequently imposed was not punitive or significantly disproportionate to the misconduct. The appeal was dismissed.

[5]        I have now received both parties’ memoranda as to costs on the appeal. This judgment determines the issue.

Standards Committee’s submissions

[6]        The Standards Committee seeks costs on a 2B basis, along with disbursements. The total costs sought are $17,208, with disbursements of $65.

[7]In calculating costs, the Committee notes, amongst other things that:

1      Holdaway v Auckland Standards Committee 4 [2024] NZHC 3544.

(a)Prior to the appeal hearing, on 10 July 2024, Ms Holdaway filed a “memorandum of appellant seeking directions”. The memorandum raised various procedural issues related to the appeal and wider issues with Ms Holdaway’s dealings with the Law Society. The Committee responded via memorandum dated 16 July 2024. On 22 July 2024, Johnstone J issued a minute to resolve the issues raised. The Committee has proposed to account for the time related to these steps by seeking the equivalent cost for preparing a memorandum for a case management conference2 given the procedural issues the memorandum addressed.

(b)The Committee will be applying to have the costs order sealed once it is issued (provided costs are ordered). The costs for this time and the related disbursement (an administrative fee of $65), is also factored into the Committee’s calculations.

[8]Security for costs in the amount of $1,195 is currently held by the court.

Ms Holdaway’s submissions

[9]        Ms Holdaway opposes the general claim for costs and, if costs are awarded, disputes the category and quantum claimed.

[10]      She submits that the costs claimed, “do not reflect the complexity of the case, nor are they predictable nor expeditious.” She highlights that actual costs have not been disclosed and says there was no complexity in this case. She also says that no submissions on penalty were made by the Standards Committee. Ms Holdaway submits that, if costs are going to be awarded, category 1 would be more appropriate.

[11]      Ms Holdaway argues that this was an appeal of the “liability” decision only (not the “penalty”) that should have required only a half-day. She says that for the sake of expediency, a full day was allocated. In her submission, this does not justify extending the hearing to a full day without additional evidence being presented.

2         High Court Rules 2016, sch 3, item 11.

[12]She also makes the following specific challenges to the costs claimed:

(a)“Matters related to access to the library and the return of files and the server were connected to a search warrant that fell outside counsel’s scope of instructions to act in the appeal and ought to be excluded.”

(b)“The memorandum opposing the remote hearing via AVL link was unnecessary. It was counsel’s preference, as she confirmed at the hearing. Remote hearings via AVL have become standard practice since COVID-19.”

(c)She says she had a right to seek name suppression due to her personal circumstances.

(d)“Counsel was assisted by a junior solicitor, who also attended to the ancillary matters. Access to the High Court library was a simple step that did not justify engaging counsel, as Ms Town could have easily emailed the librarian.”

(e)“The delivery of the computers and server is outside the scope of this appeal and related to the search warrant, which was returned by NZLS staff. Either Ms Town or NZLS staff could have communicated directly with the appellant; again, not a matter that justified engaging counsel.”

[13]      Ms Holdaway says she did not act unreasonably in bringing the appeal. She claims there was undue delay in having the appeal heard, as well as further delay in the release of the decision. She does not expand on those allegations.

[14]      She submits it would be “injurious” to award costs in these circumstances. She asks that costs lie where they fall.

[15]      Ms Holdaway concludes her submissions with the note that, if costs are awarded, they will be subject to an appeal. She therefore seeks “leave to be granted to appeal on costs.”

[16]      With great respect to Ms Holdaway, her costs submissions are discursive and difficult to follow.

Decision

[17]      I remind myself that while costs are at the discretion of the Court,3 the legislative regime provides guidance on the exercise of that discretion.

[18]      The normal principle that costs follow the event applies in this case. The starting point should be to award costs in favour of the Standards Committee—being the successful party at trial. I observe that an award of costs is always an impost on the losing party. In that sense they are always “injurious”, and Ms Holdaway’s  objection on that general ground cannot be sustained.

[19]      I am satisfied that costs should be awarded. There is no escaping the general principle in this case. It is not appropriate, as Ms Holdaway suggests, that costs lie where they fall. This was a significant matter to which the Standards Committee has committed time and resource responding to.

[20]      Ms Holdaway mounted a full-scale attack on the Tribunal’s decision and comprehensive submissions in reply were required. This was no casual matter. Moreover, Ms Holdaway made some serious allegations against the Tribunal which simply could not go unanswered.

[21]      I am also satisfied that 2B is the appropriate classification of this proceeding for scale costs purposes. I also do not agree with Ms Holdaway that category 1— applying to an appeal of a straightforward nature able to be conducted by counsel considered junior in the High Court—would be a more appropriate categorisation of this matter. Ms Holdaway’s submissions, on appeal, contained more than 100 paragraphs and traversed numerous grounds of appeal. The respondent was required to respond in full and to cover all the complex details raised by Ms Holdaway. Some serious legal points were raised, including whether Ms Holdaway’s partial compliance with some of the information requests could, in the circumstances, constitute full

3      High Court Rules 2016, r 14.1(2).

compliance.    This is plainly not an appropriate proceeding to be categorised as category 1 for complexity. Far from it, in fact.

[22]      Furthermore, I do not accept Ms Holdaway’s submission that only a half day was required for the hearing, so that only half-day costs should be awarded. Ms Holdaway’s submissions at the hearing continued until well after the lunch break, with Ms Mok only able to begin submissions in reply around 3pm. In those circumstances, the whole day was necessary for the hearing. Also, it was agreed, as the substantive decision records, that the appeal should be against the “liability” and the “penalty” decisions. This was not an appeal only against “liability” and the Standards Committee and Ms Holdaway each made submissions on “penalty”.

[23] Finally, I do not accept that any of the specific challenges as to costs mounted by Ms Holdaway have any bearing on the steps claimed by the Standards Committee. The issues raised by Ms Holdaway primarily relate to the memorandum the Standards Committee filed in response to Ms Holdaway’s memorandum seeking directions, mentioned at [7] above. That memorandum correctly noted that issues relating to the search warrant fell outside of the scope of the appeal. Additionally, I note that it did not oppose Ms Holdaway’s appearance at the hearing by AVL, instead indicating that the respondent abided the decision of the Court on that matter. I am satisfied that it is entirely appropriate for the Standards Committee to claim costs for the preparation of that memorandum and that the 0.4 days claimed, being analogous to the preparation of a memorandum for a case management conference, is the appropriate amount.

[24]      The fact that Ms Holdaway sought and was granted continuation of the suppression regarding certain details of her background and personal life does not affect the costs sought by the Standards Committee. The costs sought are in respect of responding to the substantive appeal. Suppression was an ancillary and incidental matter.

[25]      I also note that the Standards Committee has not claimed costs for second counsel. Ms Holdaway’s concerns in respect of junior counsel are not justified.

Result

[26]      Therefore, I award costs of $17,208 on a 2B basis to the respondent. I also award a single disbursement of $65 in favour of the respondent.

[27]      For the avoidance of doubt, I direct that in accordance with normal principles, which are not displaced here, the security for costs already paid into the court can be released to the respondent as partial payment of this costs award.

Becroft J