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…

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: [2021] NZHC 1457
Decision Date: 18 June 2021

CaseChat Overview and Summary

The High Court of New Zealand at Tauranga considered an appeal brought by Brett Raymond Irwin against a decision made by Judge Cameron in the District Court at Tauranga. The appeal was against a decision dated 11 October 2019, which involved a dispute between Mr Irwin, Phillipa Jane Mules, and Ross Fitches. The appeal was primarily about the liability of Ms Mules and Mr Fitches for conversion and detinue against Mr Irwin.

The central legal issue before the court was whether Mr Irwin should be granted costs on a 2B basis and disbursements following his successful appeal against the District Court's decision. Mr Irwin's counsel argued that he should receive costs amounting to $21,735.64, while counsel for the respondents contended that costs should lie where they fall, as Mr Irwin's victory was considered pyrrhic due to the unresolved issue of damages.

The court ruled that Mr Irwin was entitled to costs on a 2B basis and disbursements, totaling $21,735.64, because he succeeded on the critical points of liability, which were the only points decided upon in the appeal. The court emphasized that success on limited terms still constituted success, and since the respondents did not accept liability, they were liable for the costs. The court also noted that the costs were to be paid jointly and severally.

The final order of the court was that the respondents, Phillipa Jane Mules and Ross Fitches, were to pay Mr Irwin's costs in the High Court on a 2B basis and disbursements, amounting to $21,735.64.

Orders