Irwin v Mules

[2021] NZHC 1457

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-000115

[2021] NZHC 1457

UNDER

the District Court Act 2000

IN THE MATTER

of an appeal against a decision of Judge Cameron in the District Court at Tauranga dated 11 October 2019

BETWEEN

BRETT RAYMOND IRWIN

Appellant

AND

PHILLIPA JANE MULES

First Respondent

AND

ROSS FITCHES

Second Respondent

On the papers:
Judgment:	18 June 2021

JUDGMENT OF HINTON J

[Re Costs]

This judgment was delivered by me on 18 June 2021 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors/Counsel:

R Mark, Barrister & Solicitor, Kerikeri Stace Hammond Lawyers, Hamilton

D Hayes, Barrister, Hamilton

IRWIN v MULES [2021] NZHC 1457 [18 June 2021]

[1]    Following a hearing in February 2020, on 20 April 2020 I gave judgment allowing in part Mr Irwin’s  appeal  against  a  decision  of  Judge  Cameron  dated 11 October 2018.1 In summary, I found that Ms Mules and Mr Fitches were liable to Mr Irwin in conversion, and that Ms Mules was liable to Mr Irwin in detinue. I entered judgment for Mr Irwin accordingly.2 I made no finding in respect of damages and remitted that issue to the District Court as it raised a number of points not capable of resolution on the appeal.3

[2]    Judge Cameron’s decision of 11 October 2018 was his second in this matter. He had given an earlier decision in Mr Fitches’ favour on 20 July 2018,4 but reversed that in his second judgment and gave judgment in the respondents favour instead. As a consequence, in the hearing before me Ms Mules did not pursue an appeal she had filed against Judge Cameron’s first decision.

[3]    In my judgment I expressed the preliminary view that Mr Irwin, having succeeded on liability against both respondents, would presumptively be entitled to costs on a 2B basis plus disbursements.5 I reserved leave to counsel to file and serve memoranda in respect of costs. They did so some months ago and there have been regrettable delays since both in transmission of memoranda and otherwise.

[4]    Counsel for Mr Irwin, Mr Mark, submits my preliminary view was correct, and that Mr Irwin should receive costs in this Court on a 2B basis in respect of both appeals, together with disbursements, in the total amount of $21,735.64. In arriving at this figure, Mr Mark has properly acknowledged the duplication of work between the two appeals and so has limited the claim in respect of Ms Mules’ appeal to costs for the response to that appeal and for attendance at one case management conference specific to that appeal.

1      Irwin v Mules [2018] NZDC 20003.

2      Irwin v Mules [2020] NZHC 478 at [45] and [53].

3      At [46]-[50].

4      Irwin v Mules [2018] NZDC 11829.

5      Irwin v Mules [2020] NZHC 478 at [55].

[5]    For the respondents, Mr Hayes submits that costs should lie where they fall on the basis that costs follow the event,6 and properly considered, Mr Irwin’s success on the question of liability amounts to no success at all, given Mr Irwin is seeking not a declaration of liability but rather damages. The question of damages having instead been remitted, Mr Hayes submits Mr Irwin’s victory in this Court is “pyrrhic” at best.

[6]    As to the substance of Mr Hayes’ submission, in keeping with the precept that the award of costs should be predictable and expeditious,7 a robust view is to be taken of success and failure, and success on more limited terms is still success.8 As follows, while one party being adjudged liable to pay the other money is a clear sign the party to whom money is to be paid is the victor,9 the fact no such order has been made here does not mean Mr Irwin did not succeed. Rather, the key point is that Mr Irwin succeeded on liability, being the points on which I arrived at a conclusion before remitting the further points as to damages which the parties agreed were unable to be determined by me on the appeal. Mr Irwin therefore made important progress towards achieving his overall goal in the proceeding and clearly succeeded on all of the points in respect of which I made a determination. The respondents could have accepted liability and the present issue as to costs would not have arisen. They did not and costs are properly payable.

[7]    For these reasons, I order that the respondents are to pay Mr Irwin’s costs in this Court on a 2B basis and disbursements in the total amount of $21,735.64.10

Hinton J

6      High Court Rules 2016, r 14.2(1)(a). See, for example, Shirley v Wairarapa District Health Board

[2006] NZSC 63, [2006] 3 NZLR 523 at [19].

7      High Court Rules 2016, r 14.2(1)(g).

8      Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [20] and [26], affirmed

Midgen Enterprises Ltd v UV Water Systems Ltd [2017] NZSC 68.

9      UV Water Systems Ltd v Midgen Enterprises Ltd [2017] NZCA 36.

10     Which liability, I note, is joint and several: High Court Rules 2016, r 14.14.