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 decision was required and, if so, should also be granted. I concluded that Mr Hooper’s applications for extending time to appeal should be dismissed.

[9]                 Having done so, I directed that the respondents were to file and serve their memorandum as to costs within 20 working days of the date of my judgment.

The question of costs

[10]              The respondents originally indicated that they intended to seek increased costs against Mr Hooper. However, by memorandum dated 31 May 2024, they now accept that this is unnecessary given their total actual costs are less than their total scale costs, calculated on a 2B basis. On a 2B basis, their costs come to $14,459.50. However, their total actual costs come to $12,203, with disbursements of $110. As a result, they responsibly seek only the latter as their costs award.

[11]              Mr Hooper opposes any award of costs. He does so because the respondents only filed their memorandum as to costs on 31 May 2024, which he says was 21 working days from the date of my judgment. He says that the principles of fairness and justice necessitate strict adherence with the timeline I stipulated, and that the personal impact these proceedings have had on him further justifies declining to make any award of costs.

[12]              The constant theme of this saga has been one of delay and whether delay matters. For that reason, it is at the very least ironic that the respondents chose to file their memorandum as to costs on 31 May 2024. On one interpretation of my direction, that meant they were a day late. On another, it meant they were just within time. The question is which.

[13]              Unfortunately for Mr Hooper, the answer is the latter. In my substantive judgment I directed that the respondents were to file and serve their memorandum as to costs “within 20 working days of the date of this judgment”. I used that wording in the sense meant by s 54 of the Legislation Act 2019. That section provides that if a period is described as being “within a specified number of days of a specified day, act or event” then “the period does not include that day or the day of the act or event”. Accordingly, time ran from after the date of my judgment. This meant 31 May 2024 was the last date for the respondents to file and serve their memorandum.

[14]              The respondents accordingly filed and served their costs memorandum as required. The costs they seek are also reasonable. As the winning party in my substantive judgment, it is my conclusion that Mr Hooper should pay their costs, given they were the successful party in this proceeding. I also note that the late Mr Bushill’s estate has now been distributed, which further bolsters my conclusion that the respondents are entitled to costs.

Result

[15]I make an order that the respondents are entitled to costs in the amount of

$12,203 plus disbursements of $110 against Mr Hooper.

Moore J