Lenihan v District Court at Auckland

[2018] NZHC 3331

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000993

[2018] NZHC 3331

BETWEEN

JOHN LENIHAN

Appellant

AND

ANDREW MAEHL and WINNIFRED CHARLESWORTH

Respondents

CIV-2018-404-001173

BETWEEN

JOHN LENIHAN
Applicant

AND

DISTRICT COURT AT AUCKLAND

First Respondent

ANDREW MAEHL and WINNIFRED CHARLESWORTH

Second Respondents

Hearing:	On the papers
Judgment:	14 December 2018

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 14 December 2018 at 1.00pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

BSA Law/S Stienstra, Auckland

Christopher Taylor/Zara Matheson, Auckland

LENIHAN v MAEHL [2018] NZHC 3331 [14 December 2018]

[1]    I refer to my reserved judgment dated 19 November 2018.1 I allowed Mr Lenihan’s appeal, and held that Judge Dawson in the District Court had no jurisdiction to issue a costs decision on 23 April 2018, and that he erred in law in doing so.2

[2]    I held that Mr Lenihan was entitled to an award of costs.3 I did express the hope that the parties would be able to reach a sensible, economical and justifiable solution.4 I have now received memoranda from counsel. It is clear that they have  not been able to do so.

[3]    Ms Stienstra, for Mr Lenihan, seeks costs in the sum of $13,826 – being costs calculated on a 2B basis. This includes an allowance of three days – at $2,230 per day

– for the costs for preparing for the hearing, and an appearance at the hearing for half a day.

[4]    Ms Matheson has responded on behalf of Mr Maehl and Ms Charlesworth. She accepts that Mr Lenihan as the successful party is prima facie entitled to his costs, but argues that the Court should exercise its discretion to either refuse or reduce any costs award, pursuant to r 14.7 of the High Court Rules (the Rules).

Analysis

[5]    It is apparent that the parties to this matter are engaged in a bitter dispute. Mr Maehl and Ms Charlesworth are resisting costs, but they are also indicating that they will seek leave to challenge out of time a decision made by Judge Dawson on 23 February 2018.

[6]    As the successful party, Mr Lenihan is entitled to his costs and disbursements. Both parties had previously agreed that costs should be fixed on a category 2B basis. This was accepted and recorded by Jagose J in a minute dated 7 August 2018. The Rules provide that, as far as possible, the determination of costs should be predictable and expeditious – see r 14.2(1)(g).

1      Lenihan v Maehl [2018] NZHC 2989.

2      At [53]-[54].

3 At [58].

4 At [58].

[7]    The costs categorisation previously agreed does not bind the Court, but there are policy reasons for not departing too readily from an agreed position reinforced by a judicial prediction of that sort without good reason.

[8]    I am satisfied that the costs claimed by Ms Stienstra in her memorandum have been properly calculated. What is at issue is whether or not I should reduce that costs award under r 14.7. In my view, it is appropriate to do so. I note the following:

(a)the interests of the parties at stake were of low value. The costs award which Mr Lenihan challenged was for only $13,330;

(b)Mr Lenihan contributed unnecessarily to the time and expense of the appeal. He failed to bring his appeal within the prescribed time, and then failed to properly apply for special leave to extend the time for filing his notice of appeal. Time was spent in dealing with these issues;

(c)Mr Lenihan commenced proceedings by way of judicial review. I do not consider that that step was appropriate. It is difficult to see how judicial review could ever have succeeded, given that there was a right of appeal against the decision challenged; and

(d)at the hearing before me, Mr Lenihan’s counsel effectively abandoned the first ground of appeal – namely that Judge Dawson did not have jurisdiction to award costs having failed to reserve the same. She conceded that there was such jurisdiction. Initially, this was one of the main grounds of appeal, and counsel for Mr Maehl and Ms Charlesworth had to prepare to deal with that challenge.

[9]    In my judgment, it is appropriate to reduce the time spent in preparing for the appeal by two days, and to allow Mr Lenihan costs for only one day’s preparation.

[10]   Accordingly, I make a costs award in favour of Mr Lenihan, and against Mr Maehl and Ms Charlesworth, in the sum of $9,366.

[11]   There has been no claim for disbursements. Accordingly, I make no award in respect of the same.

Wylie J