KELVYN ALP AND ATTORNEY-GENERAL - [2024] NZHC 2901

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000400

[2024] NZHC 2901

UNDER High Court Rules 2016

BETWEEN

KELVYN ALP

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing: (On the papers)

Counsel:

T J Leighton for Appellant

S J Leslie and K Budgen for Respondent

Judgment:

7 October 2024

JUDGMENT OF BOLDT J

(costs)

[1] On 29 May 2024, Judge K D Kelly dismissed a civil proceeding Mr Alp brought against the Attorney-General.1

[2] Mr Alp applied for leave to appeal out of time against Judge Kelly’s decision. He also asked the Court to dispense with the usual payment of security for costs on appeal. In a judgment dated 29 August 2024, McQueen J set out her reasons for declining Mr Alp’s application.2

[3] In her decision, McQueen J concluded there was no basis to dispense with security. Moreover, she held the apparent lack of merit in Mr Alp’s appeal meant

1 Alp v The Attorney-General [2024] NZDC 11935.
2 Alp v Attorney-General [2024] NZHC 2442.

ALP v ATTORNEY-GENERAL [2024] NZHC 2901 [7 October 2024]

increased security would be appropriate.3 Justice McQueen directed Mr Alp to lodge security in the sum of $5,000.

[4] Mr Alp discontinued his appeal. He now seeks an order that no costs should be payable on the discontinued appeal. His primary submission is that he is impecunious, and therefore not in a position to pay costs. Alternatively, Mr Alp asks the Court to decrease any award. The respondent seeks costs on a 2B basis, which, in accordance with its calculation, amount to $4,780.

[5] It is common ground that costs are ordinarily payable upon a discontinuance. Rule 15.23 of the High Court Rules 2016 provides:

15.23 Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[6] Impecuniosity is not ordinarily regarded as a ground for dispensing with an otherwise appropriate award. As the Court of Appeal observed in Genge v Visiting Justice at Christchurch Men’s Prison, “[t]he normal rule is that costs follow the event. The fact an unsuccessful plaintiff may not be able to meet these costs is not generally relevant.”4

[7] The fact Mr Alp says he is impecunious may affect the Crown’s ability to enforce a costs award, but it is not, in itself, a basis for refusing costs. Both Judge Kelly and McQueen J reached a clear view Mr Alp’s case lacked merit. It was irresponsible of Mr Alp to put the respondent in a position where it would incur expense defending a meritless claim, especially if he was unable to meet an award. I can see no basis to depart from the normal rule that costs should follow the event.

[8] The respondent seeks costs on a 2B basis. The case is appropriately placed in category 2, and I also agree 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: [2024] NZHC 2901
Decision Date: 7 October 2024

CaseChat Overview and Summary

The case between Kelvyn Alp and the Attorney-General involved an appeal by Mr Alp against a dismissal of his civil proceeding. Mr Alp had previously sought leave to appeal out of time and to dispense with the payment of security for costs, both of which were denied by McQueen J. The matter now before the court was Mr Alp’s application for an order that no costs should be payable on the discontinued appeal. He argued that he was impecunious and therefore unable to pay costs, or alternatively, that the costs should be reduced. The Attorney-General sought costs on a 2B basis, amounting to $4,780.

The primary legal issue the court needed to address was whether Mr Alp’s impecuniosity justified dispensing with the usual award of costs upon discontinuance of an appeal. Under Rule 15.23 of the High Court Rules 2016, a plaintiff who discontinues a proceeding against a defendant must pay the defendant's costs unless otherwise agreed or ordered by the court. The court considered whether Mr Alp’s financial inability to pay should be a ground for refusing costs. It was noted that impecuniosity is generally not a valid reason to avoid a costs award. The court also needed to review the appropriateness of the costs sought by the Attorney-General, specifically whether the steps taken in the appeal fell into the correct cost banding.

The court held that the normal rule that costs should follow the event should be applied in this case. The court acknowledged Mr Alp’s claim was meritless, as previously concluded by Judge Kelly and McQueen J. While Mr Alp’s impecuniosity might affect the Crown’s ability to enforce a costs award, it did not provide a basis for refusing costs. The court also reviewed the costs sought by the Attorney-General and found that most of the steps were appropriately categorized in band B. However, one step related to the commencement of the respondent’s response to the appeal was more appropriately placed in band A, reducing the overall award to $4,302.

The court awarded costs to the Attorney-General in the amount of $4,302, with a slight adjustment from the initially sought amount. This decision reinforces the principle that costs generally follow the event and that impecuniosity alone is not a sufficient ground to avoid such an award.

Orders