Lau v Osbourne

[2018] NZHC 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002913

[2018] NZHC 1985

BETWEEN

AUGUSTINE LAU

Plaintiff

AND

BRENDA OSBOURNE

Defendant

CIV-2016-404-002916

BETWEEN

AUGUSTINE LAU
Plaintiff

AND

BEVERLY PASLOW

Defendant

(Continued over page)

Hearing:

(On the papers)

Counsel:

Plaintiff in Person

William Potter for Brenda Osbourne, Paul Northover and Janet Whiteside
Alicia Murray for Beverly Parslow

Judgment:

7 August 2018

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 7 August 2018 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LAU v OSBOURNE & ORS [2018] NZHC 1985 [7 August 2018]

CIV-2016-404-003028

BETWEEN  AUGUSTINE LAU

Plaintiff

AND  PAUL NORTHOVER

Defendant

CIV-2016-404-003066

BETWEEN  AUGUSTINE LAU

Plaintiff

AND  JANET WHITESIDE

Defendant

Introduction

[1]                  In a decision dated 22 November 2017 I ordered Augustine Lau to pay security for costs in the sum of $105,000 and granted a stay of proceedings until the security had been paid.1

[2]                  He brought proceedings against four defendants alleging, among other things, negligence on their part. The four defendants are involved, either more directly or tangentially, in various other streams of litigation with the Auckland Council. They are either Council employees or contractors who at some point have been involved in Council matters involving Mr Lau, and at the time of hearing some if not all were expected to be witnesses at a jury trial commencing in November 2017.

[3]                  The defendants, having succeeded in their applications, seek costs. At the outset I wish to record my apologies to counsel and the parties that I am only making orders at this late stage. Due to an administrative oversight, the memoranda have only recently come to my attention.

My substantive decision

[4]                  For the purposes of this decision it is not necessary to recount the background to my substantive judgment in detail. The salient points are as follows.

[5]                  The defendants sought orders for security for costs with stay until the security was given. Alternatively, they sought strike out of each proceeding.

[6]                  I concluded orders that Mr Lau pay security for costs, in the sum of $30,000 in respect of one defendant, Ms Parslow, and $25,000 in respect of each of the other three, were appropriate. I ordered stay of proceedings until the amounts had been paid.

[7]                  I accepted Mr Lau’s long proven history of steadfast non-compliance with costs orders was such that I could have no confidence, if unsuccessful in his claim, he could pay a further costs award. By that time the combined sum of extant costs was some $379,210. I also noted his acceptance in submissions he had little income to pay

1      Lau v Osbourne [2017] NZHC 2874.

costs, that he had no real property, and faced bankruptcy proceedings commenced by the Inland Revenue Department.

[8]                  In determining to exercise my discretion to order the payment of security for costs, I was particularly influenced by the apparent lack of merit in the proceedings, Mr Lau’s history of conducting vexatious litigation, and judicial observations in the Environment Court about Mr Lau’s history of deliberate non-compliance with court orders and meritless claims. The total figure ordered to be paid, $105,000, was substantial but reflected my view that there was “a lack of merit in the proceedings viewed in the context of Mr Lau’s history of conducting vexatious litigation”.2

The orders sought

[9]                  In my judgment I determined that the defendants, being the successful parties, were entitled to costs.3 That is consistent with the longstanding and “fundamental principle” that in all general courts in New Zealand costs should follow the event.4 Accordingly, all that remains to be resolved is quantum.

[10]              Ms Parslow is represented separately from the other three defendants, and was at the hearing before me. She seeks costs on a 2B basis and reasonable disbursements for her part in the successful application, in the sum of $6,458, comprising:

Step	Description	Daily rate	No. of days	Total
22	Filing interlocutory application for directions as to service	$2,230	0.6	$1,338
24	Preparation of written submissions	$2,230	1.5	$3,345
26	Appearance at hearing of defended application for sole or principal counsel	$2,230	0.5	$1,115

2 At [123].

3 At [134].

4      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

Step	Description	Daily rate	No. of days	Total
Total costs	2.6	$5,798
Filing fee for interlocutory application	$500
Hearing fee	$1605
Total disbursements	$660
Total costs and disbursements	$6,458

[11]              The remaining three defendants, as noted, are jointly represented. They seek costs on a 2B basis, adjusted for those steps which were jointly taken. They seek costs for step 22 individually, but joint costs for steps 24 and 26. That produces a claim for

$3,484.66 for costs and disbursements in respect of each.

[12]              No costs memoranda has been filed by Mr Lau. I provided 30 working days from the date of my judgment, being 22 November 2017, for all costs memoranda to be filed. On Wednesday 13 December 2017 Mr Lau advised the Registry he would file a memorandum by Friday that week. He further advised on 18 January 2018 that he would file a response the following day. A week later he was sentenced to two months and two weeks’ imprisonment for a contravention of the Resource Management Act 1991.6 Notwithstanding that term of imprisonment, by now he has had a number of months within which to file a memorandum, and indeed the period I ordered for filing had expired before he was imprisoned.

What costs should be awarded?

[13]              Having reviewed the costs memoranda filed, I am satisfied the quantum sought by each defendant is reasonable and appropriately awarded. Although Mr Lau has not filed a memorandum in response, the deadline I provided for all memoranda to be filed

5      The total hearing fee, $640, was split between the four defendants.

6      [R] v Lau [2018] NZDC 1133.

has long-since expired. Moreover, there is little in the amounts sought that could be subject to serious challenge.

[14]Accordingly, I am content to grant the orders as sought.

Orders

[15]Mr Lau is ordered to pay Ms Parslow costs and disbursements in the sum of

$6,458.

[16]              Mr Lau is ordered to pay the remaining defendants costs and disbursements in the sum of $3,484.66.

Moore J

Solicitors:

Meredith Connell, Auckland DLA Piper, Auckland

Copy to:

The Plaintiff