Ka Pai Kaiti Trust v Kaiti Club Hotel Limited

[2018] NZHC 1715

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-485-00028

[2018] NZHC 1715

UNDER

The Sale and Supply of Alcohol Act 2012 (the Act)

IN THE MATTER OF

An appeal under Section 162 of the Act

against a decision of the Alcohol Regulatory and Licensing Authority to grant orders pursuant to Section 153(3) of the Act

concerning the “Kaiti Sports Bar”

BETWEEN

KA PAI KAITI TRUST

Appellant

AND

KAITI CLUB HOTEL LIMITED

Respondent

Hearing:	On the papers at Hamilton
Judgment:	13 July 2018

JUDGMENT OF POWELL J

[Costs on Appeal]

This judgment was delivered by me on 13 July 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Te Mata Law Ltd, Auckland Harkness Henry, Hamilton Counsel:

Dr G Hewison

KA PAI KAITI TRUST v KAITI CLUB HOTEL LIMITED [2018] NZHC 1715 [13 July 2018]

[1]                  By way of an oral judgment dated 7 June 2018 I dismissed the appeal for the appellant, Ka Pai Kaiti Trust (“the Trust”).1 The Trust had appealed against a decision of the Alcohol Regulatory and Licensing Authority granting a stay to the respondent Kaiti Club Hotel Limited (“the Hotel”) pending the hearing of its own appeal against the refusal of the Gisborne District Licensing Committee to renew its on-licence.

[2]At the end of my judgment I noted:

[12] The Hotel sought costs on the appeal. If these cannot be agreed within one month of the delivery of this judgment I will determine the issue following the filing of memoranda. I would urge the Hotel to take into account the circumstances that Mr Hewison noted at the outset, that the Trust is a community group and noting its reasons for bringing the appeal, notwithstanding, as will be clear from my judgment, that it did not have any prospect of success.

[3]                  Counsel have confirmed that no agreement has been reached and have requested that costs now be fixed.

[4]The Hotel seeks an order for payment of its actual costs incurred in the sum of

$5,683.50, noting that the proceeding had been identified as a Category 2 proceeding and calculating that on a 2B basis, would have entitled the Hotel to $9,031.50, a calculation not challenged by the Trust. In contrast, the Trust opposes the quantum of costs sought and has submitted that while this is a situation where costs should appropriately lie where they fall, it concedes that as it had been advised by the Hotel there was no merit to its appeal at the outset it should pay costs in the sum $1,155, being the amount it was required to pay for security for costs. In submitting that it should not have to meet the Hotel’s claimed costs the Trust relies on the following matters:

(a)That the Trust is a not-for-profit community group trying to make the suburb of Kaiti “an even better place to live”.

(b)The Trust brought the appeal in the public interest and considered the appeal was in the nature of a test case with regard to the scope of       s 153 of the Sale and Supply of Alcohol Act 2012.

1      Ka Pai Kaiti Trust v Kaiti Club Hotel Limited [2018] NZHC 1332.

(c)The Trust questioned the need for the Hotel to be represented by two counsel; and

(d)The Trust noted that the Hotel has had significant financial benefit as a result of the stay being granted.

Discussion

[5]                  Having considered the submissions of the parties I am satisfied that there should be an order for costs in favour of the Hotel for the full amount claimed.

[6]                  While I accept the Trust serves an important role in its community and it is a not-for-profit organisation, the fact is that this appeal had no prospect of success and to pursue it in those circumstances means that it must accept that costs would follow. The appeal was disposed of in terms of the existing law and was not in any sense a test case, while the fact that the Hotel has been able to continue to trade as a result of the stay being granted is irrelevant to whether costs should be awarded on the unsuccessful appeal.

[7]                  The complaint about the Hotel utilising two counsel is also without merit. Not only was the Trust also represented by two counsel in the hearing before me, but the fact that the total costs sought by the Hotel are only some 60 per cent of costs on a 2B basis shows that far, from being extravagant, the Hotel’s solicitors were efficient in preparing and presenting the Hotel’s response in the appeal. As a result even allowing for the community based nature of the Trust I am satisfied that the full amount of costs sought are appropriately paid by the Trust on the appeal.

Decision

[8]The Trust is to pay the Hotel costs in the sum of $5,683.50.

Powell J