Hooper v Bushill - [2024] NZHC 2435

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1622

[2024] NZHC 2435

BETWEEN
ANDREW STUART HOOPER

Appellant

AND

REBECCA BUSHILL, SARAH BUSHILL, MATHEW ASPIN and COLIN STEWART

BOYER for the estate of Graham Stuart Bushill

Respondents

Hearing: On the papers

Appearances:

Appellant in Person

P Murray for Respondents

Judgment:

28 August 2024

COSTS JUDGMENT OF MOORE J

This judgment was delivered by me on 28 August 2024 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

………………………………… Registrar/Deputy Registrar

Date: ………………………….

Solicitors:
Burton Partners, Auckland

HOOPER v BUSHILL [2024] NZHC 2435 [28 August 2024]

Introduction

[1] In a judgment released on 3 May 2024, I declined Mr Hooper’s applications for leave to appeal out of time two decisions made in the District Court.1 This judgment now deals with the outstanding question of costs.

Background

[2] The full background to this matter is set out in my substantive judgment. However, for present purposes, the following summary will suffice.

[3] In 2016, Mr Hooper entered into a tenancy agreement to lease a residential property in Pakuranga owned by Mr Bushill. In 2018, Mr Bushill died. His executors, the respondents, gave notice to Mr Hooper that the tenancy would terminate in mid- January 2019.

[4] Shortly before the tenancy expired, the respondents brought a claim in the Tenancy Tribunal seeking rent arrears. The proceedings ultimately culminated in a three-day hearing (part adjourned), in which the Tribunal found substantially in the respondents’ favour, awarding damages narrowly surpassing $4000. The Tribunal also awarded costs totalling approximately $20,000, in part because of Mr Hooper’s contribution to procedural delays and the meritless nature of some of his own claims.

[5] Mr Hooper appealed to the District Court. He did so one day before the appeal period against the Tribunal’s decision expired but failed to serve his notice of appeal on the respondents. The District Court subsequently directed that leave to appeal was required, but that this could be dealt with at the same time as his substantive appeal.

[6] On 15 November 2022, the District Court determined that it had no jurisdiction to hear the appeal because it was not empowered to grant any extension of time. The application for leave to extend time was declined and the appeal was struck out.

[7] Matters did not end there, however, because through inadvertence different files had been created by the District Court registry for Mr Hooper’s singular appeal

1 Hooper v Bushill [2024] NZHC 1070.

against the Tribunal’s decision. On 4 July 2023, the duplicated file came again before the same District Court Judge who noted this and dismissed the proceedings accordingly.

[8] On 30 July 2023, Mr Hooper filed a notice of appeal in this Court against those two District Court decisions. In the end, the issue before me concerned whether Mr Hooper’s application for leave to appeal the November 2022 decision should be granted and whether leave to appeal the July 2023…

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.

Continue reading Hooper v Bushill

Details

AGLC: Hooper v Bushill [2024] NZHC 2435
Case: [2024] NZHC 2435
Decision Date: 28 August 2024

CaseChat Overview and Summary

The matter of Hooper v Bushill [2024] NZHC 2435 involved a legal dispute between Andrew Stuart Hooper and the respondents, Rebecca Bushill, Sarah Bushill, Mathew Aspin, and Colin Stewart Boyer for the estate of Graham Stuart Bushill. The case originated from a tenancy agreement entered into in 2016 by Mr Hooper and Mr Bushill, which was terminated following Mr Bushill’s death in 2018. The dispute escalated when the respondents sought rent arrears in the Tenancy Tribunal, which found in their favour, and awarded damages and costs. Mr Hooper's subsequent appeals in the District Court were dismissed, leading to his application for leave to appeal to the High Court. The court was tasked with determining whether Mr Hooper’s applications for leave to appeal out of time were justified and whether costs should be awarded to the respondents.

The primary legal issues before the court were whether Mr Hooper's applications for leave to appeal the District Court's decisions were justified and, if so, whether they should be granted. Additionally, the court had to determine the appropriate costs to be awarded to the respondents given their successful outcome. The respondents argued that they were entitled to their costs as the prevailing party, while Mr Hooper contended that the respondents were not entitled to any costs due to procedural delays and the impact of the proceedings on him.

Moore J concluded that Mr Hooper's applications for leave to appeal out of time should be dismissed, as the District Court did not have the jurisdiction to extend the appeal period. The court further determined that the respondents were entitled to costs as they were the prevailing party. Although the respondents filed their memorandum a day later than the stipulated 20 working days, the court interpreted the timeline in accordance with s 54 of the Legislation Act 2019, which excludes the day of the act or event from the calculation. As a result, the respondents’ memorandum was deemed timely filed. Given that the respondents' actual costs were less than their scale costs, they were awarded $12,203 plus disbursements of $110.

In conclusion, the court ordered that Mr Hooper pay the respondents $12,203 plus disbursements of $110 as costs of the proceeding. This outcome underscores the importance of adhering to procedural timelines and the principle that the successful party is generally entitled to recover their costs.

Orders