Jacobson v Manukau City Council HC Auckland CIV 2006-404-5787

[2007] NZHC 1810

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-5787

BETWEEN  BRIAN ARTHUR JACOBSON Judgment Debtor

ANDMANUKAU CITY COUNCIL Judgment Creditor

Hearing:         8 June 2007

Appearances: Judgment Debtor in person

S J Corlett for Judgment Creditor

Judgment:      8 June 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors / Parties:

Mr B A Jacobson, PO Box 5454, Auckland 1141 (Fax: [phone])

Mr S J Corlett, Brookfields, PO Box 240, Auckland (Fax: [phone])

JACOBSON V MANUKAU CITY COUNCIL HC AK CIV 2006-404-5787  8 June 2007

[1]      The judgment creditor took steps to enforce a costs judgment that was made in the Environment Court at Auckland 1 March 2006.  It served a bankruptcy notice on Mr Jacobson.   He in turn filed an application for an order setting aside the bankruptcy notice.   A hearing was allocated for 18 May 2007.   On 13 May Mr Jacobson withdrew his application to set aside the bankruptcy notice.  The judgment creditor seeks costs.

[2]      The judgment creditor’s application was initially based on r 476C of the High Court Rules, but Mr Corlett accepted that that rule does not have any application in its terms to an interlocutory application.  Rather, he now relies upon the costs rules in Part 1 of the High Court Rules and in particular r 46 and r 48E.

[3]      Mr Jacobson, for his part, opposes the making of an order for costs.  It was his position that when he took the original proceedings in the Environment Court he was simply exercising his rights of “freedom of speech”.  He submits that it would be inimical to those rights for Court to make an order for costs in this proceeding. That would be, he submitted, to punish him for exercising his rights.

[4]      I have no doubt that Mr Jacobson holds his views sincerely, both as to the importance of the matter that he sought to raise in the Environment Court, and the correctness of the position he took in that Court.   But we are now a long way downstream from whatever happened in the Environment Court.    The incontrovertible fact is that that Court made an order for costs and in the usual way the judgment creditor who was the beneficiary of that order has brought proceedings in the bankruptcy court to enforce the order.   The Environment Court cannot, of course, enforce the costs order by means of invoking the bankruptcy legislation contained in the Insolvency Act 1967.

[5]      The proceedings in the Environment Court are of background interest.  They have had little bearing on the matter that I have to decide today.  I accept that Mr Jacobson was exercising his rights to have access to the Courts, but when people do that they have to accept that they expose themselves to the possibility that orders for costs will be made.  I have no basis upon which I am entitled to conclude other than

that the order in the Environment Court was properly made.   It has never been attacked by way of review or appeal, so far as I am aware.  There is to be balanced against the right of individuals to go to the Court the fact that Court proceedings that they initiate can cause considerable expense to the other party.

[6]      It seems to me that first of all there is jurisdiction to make an order for costs in this circumstance.  I also intend to approach the application on the basis that the losing party will generally have to pay costs.  I conclude that I should make an order for costs.

[7]      The next issue concerns the amount of any order.  Mr Corlett tells me that his calculations show that scale costs on a 2B basis come to just over $4,160.   Mr Jacobson will, if I make an order in that sum, end up not only having to pay the original costs order of some $8,000 but also the $4,160.  He is a retired man and I gather from what he tells me that he is in limited means.

[8]      Mr Corlett properly accepted that r 48D(f) entitled the Court to take into account the means of a litigant when making an order.  I intend to have regard to that sub-rule.

[9]      In exercising my discretion I have to balance on the one hand Mr Jacobson’s limited financial means, but on the other hand that the steps that he has taken in the present proceeding and then abandoned have caused expense to the Manukau City Council, which it is entitled to reimbursement.  It seems to me that an order for costs must be made.   I am prepared to make some reduction in the amount awarded to reflect Mr Jacobson’s financial circumstances and no doubt the hardship that will bear upon him if an order in the full amount claimed was made.  I therefore direct that he is to pay the sum of $2,500 on account of party and party costs relating to the application to set aside the bankruptcy notice.  As well, he is to pay disbursements, if

any, on the application as fixed by the Registrar.

Associate Judge J P Doogue