Lenihan v Maehl
[2018] NZHC 2989
•19 November 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000993
[2018] NZHC 2989
BETWEEN JOHN LENIHAN
Appellant
AND
ANDREW MAEHL and WINNIFRED CHARLESWORTH
Respondents
CIV-2018-404-001173 BETWEEN
JOHN LENIHAN
ApplicantAND
DISTRICT COURT AT AUCKLAND
First Respondent
ANDREW MAEHL and WINNIFRED CHARLESWORTH
Second Respondents
Hearing: 13 November 2018 Appearances:
S Stienstra for Appellant/Applicant
Z Matheson for Respondents in proceeding CIV-2018-404- 000993 and for Second Respondents in proceeding CIV-2018- 404-001173
No appearance for First Respondent in proceeding CIV-2018-404- 001173
Judgment:
19 November 2018
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 19 November 2018 at 11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
LENIHAN v MAEHL [2018] NZHC 2989 [19 November 2018]
Introduction
[1] Mr Lenihan has filed an appeal against a costs decision made by Judge Dawson in the District Court at Auckland on 23 April 2018.1 That decision awarded costs, calculated on a 2B basis, in the sum of $13,330 to the respondents, Mr Maehl and Ms Charlesworth.
[2] There are issues as to whether or not the notice of appeal was filed and served within the required time, and whether any failure to serve can be waived. As a result, Mr Lenihan brought an application for leave to appeal. He also brought judicial review proceedings asserting that the costs decision made by Judge Dawson was unlawful, and seeking an order quashing the decision.
Factual background
[3] Mr Lenihan owns two adjoining properties in Paturoa Road, Titirangi. Mr Maehl and Ms Charlesworth own a neighbouring property.
[4] Mr Lenihan’s properties are undeveloped and, in 2014, he obtained resource consent from Auckland Council, permitting him to build on his properties. The resource consent also permitted Mr Lenihan to fell a Kauri tree on one of the properties.
[5] A number of persons, including Mr Maehl and Ms Charlesworth, opposed the felling of the Kauri tree. One protestor trespassed on Mr Lenihan’s property and resided in the Kauri tree for a number of days. As a result, the matter attracted some media attention.
[6] In December 2015, Mr Maehl and Ms Charlesworth filed an application seeking to review the grant of the resource consent. That application was part heard in November 2016. The hearing was due to resume in May 2017 but, shortly beforehand, Mr Lenihan surrendered the resource consent. As a result, the judicial review was discontinued.
1 Lenihan v Maehl [2018] NZDC 7751.
[7] This, however, was not the end of the disputes between the parties. There have been a number of other matters in issue between them:
(a)Mr Maehl and Ms Charlesworth obtained an injunction and an interim enforcement order, preventing any construction works on Mr Lenihan’s properties.
(b)In May 2017, Mr Maehl and Ms Charlesworth brought enforcement proceedings in the Environment Court against Mr Lenihan. Counsel advise that these proceedings are ongoing.
(c)Mr Lenihan has issued trespass orders against Mr Maehl and Ms Charlesworth.
(d)Mr Lenihan commenced proceedings in the Disputes Tribunal against Mr Maehl and Ms Charlesworth seeking that they contribute to the costs of construction of a fence between the respective properties.
[8] Relevantly, for present purposes, in May 2017, Mr Lenihan (and his partner) sought civil restraining orders against Mr Maehl and Ms Charlesworth under the Harassment Act 1997. Some 28 acts of harassment were alleged against Mr Maehl, Ms Charlesworth and a third party. The orders sought to require the respondents to cease posting articles on Facebook about Mr Lenihan and to stop a security camera located on the common fence between the properties being pointed towards Mr Lenihan’s property.
[9] The proceedings under the Harassment Act were set down for hearing as a “simplified” trial in the District Court at Auckland on 21 and 22 November 2017, to be held in accordance with rr 10.1 and 10.5 to 10.7 of the District Court Rules 2014.
[10] Shortly before the hearing, Mr Lenihan settled his claim against the third party. He then filed a table listing the allegations he wished to continue to pursue against Mr Maehl and Ms Charlesworth. The hearing proceeded before Judge Dawson. It
occupied one and a half days. Judge Dawson delivered a reserved judgment on 30 November 2017. He dismissed Mr Lenihan’s application in its entirety.2
[11] Neither party has appealed this decision but again it was not to be the end of the dispute between the parties.
Costs – the judgment of 30 November 2017
[12] Judge Dawson, in his decision of 30 November 2017, did not reserve costs; he did not request memoranda in relation to costs; he did not refer to costs in his reserved judgment at all.
[13]This is perhaps not surprising.
[14] At my request, the parties made copies of the pleadings in the District Court available to me. Mr Lenihan’s (and his partner’s) initial application for a restraining order did not seek costs. Nor did an amended application filed in May 2017. The notice of defence filed by Mr Maehl, Ms Charlesworth and the third party did not seek costs. There was no reference to costs in the evidence called before Judge Dawson and neither party sought costs in their respective submissions. Indeed, Ms Stienstra, appearing for Mr Lenihan, told me that her client did not want costs – rather, he wanted to vindicate his position and bring what he saw as harassment to an end.
[15] It was common ground between counsel that the reserved judgment of 30 November 2017 has not been sealed.
Costs – subsequent developments
[16] On 21 December 2017, Mr Maehl and Ms Charlesworth, through their counsel, filed a memorandum, as the successful parties in the substantive proceedings, seeking costs on a 2B basis. Costs in the sum of $13,330 were sought. There was no claim for disbursements.
[17] A reply memorandum was filed on behalf of Mr Lenihan on 25 January 2018. The reply memorandum noted that Judge Dawson had not invited an application for costs in his judgment of 30 November 2017. It did not, however, otherwise raise the
2 Lenihan v Maehl [2017] NZDC 26577.
issue of the Court’s jurisdiction to award costs. Rather, it went on to submit that the correct categorisation of costs was category 1A, and that, if the Court was minded to grant costs, the correct sum – calculated on a 1A basis – was $3,450.
[18] The memoranda were referred to Judge Dawson by the Registrar on 12 February 2018 and the Judge issued handwritten and signed directions on 23 February 2018. Those handwritten directions were transcribed by the Registrar and he wrote to counsel for both parties on 23 February 2018. The directions were in the following terms:
Re: Lenihan v Maehl CIV-2017-004-000649
The following minute/directions was made in the above matter By Dawson DCJ
On 23 February 2018
Costs
Costs were not reserved at the conclusion of the hearing on in the decision of this Court.
There is a clear line of authority that a costs order cannot be made at this stage. See:
Thomson v Thomson [1993] NZFLR 315
O’Neil -v- Toogood [2017] NZHC 795,
Fernandez -v- Fernandez [2015] NZHC 3048
[19] On 7 March 2018, Mr Maehl and Ms Charlesworth filed a further memorandum, through counsel, taking issue with Judge Dawson’s minute and suggesting that a costs award could and should be made in their favour, notwithstanding that costs had not been reserved in the substantive proceedings. Counsel sought to distinguish the cases referred to by Judge Dawson in the minute.
[20] Counsel for Mr Lenihan responded in a memorandum dated 16 March 2018. Inter alia, counsel asserted that if Mr Maehl and Ms Charlesworth were not happy with
the Court’s “decision” on the issue, they had the right to appeal the issue to this Court. It was submitted that Judge Dawson had exercised his discretion and determined not to award costs, and that the issue of costs was therefore closed.
[21] On 23 April 2018, Judge Dawson issued the costs decision.3 The Judge changed his view. Contrary to his earlier minute, he found that the Court still had a discretion to award costs, referring to r 14.2(a) of the District Court Rules and the decision of the Supreme Court in Manukau Golf Club Inc v Shoye Venture Ltd.4 He noted that the substantive decision had not been sealed. He awarded costs in Mr Maehl’s and Ms Charlesworth’s favour, on a 2B basis, in the sum of $13,330. The Judge commented that costs in this amount reflected the relative complexity and significance of the case.
[22] The costs judgment was sealed on 18 May 2018 by Mr Maehl and Ms Charlesworth, without prior notice to Mr Lenihan.
The appeal/application for review
[23] As noted, the appeal and the application for review challenge Judge Dawson’s costs judgment dated 23 April 2018. There has been no appeal against the Judge’s minute of 23 February 2018, either by Mr Lenihan, or by Mr Maehl and Ms Charlesworth. Nor did either party ask Judge Dawson to recall that minute.
[24] The notice of appeal was filed in this Court on 24 May 2018. It was served on the respondents on Monday 28 May 2018. It was lodged with the District Court on 11 June 2018 after counsel for Mr Maehl and Ms Charlesworth queried with Mr Lenihan’s counsel whether that step had been taken.
[25] Section 34(1) of the Harassment Act provides a party to proceedings under that Act with a right of appeal to this Court. Section 34(2) states as follows:
(2) The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 124 of that Act.
3 Lenihan v Maehl, above n 1.
4 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305.
The Harassment Act does not specify a period within which an appeal must be brought. As a result, r 20.4(2)(b) of the High Court Rules applies. It provides that an appeal must be brought within 20 working days after the decision appealed against is given.
[26] Ms Stienstra, for Mr Lenihan, submitted that the appeal was filed with this Court within the requisite 20-working day period. I disagree. The appeal period started to run from 24 April 2018. The date the costs decision was released – 23 April 2018 – is excluded from the calculation of the 20-working day period by r 1.17(2) of the High Court Rules. Further, the 25th of April was a public holiday – Anzac Day – and it is also excluded from the calculation by the definition of the words “working day” contained in r 1.3. By my calculation, the 20-working day period within which the appeal had to be brought expired on 22 May 2018. If this is correct, it follows that the appeal was filed in this Court two days late.
[27] Further, and in any event, r 20.4(2)(b) refers to an appeal being “brought”. The bringing of an appeal requires more than the filing of a notice of appeal in the registry of the appellate court. Rather, r 20.6(1) provides as follows:
(1)An appeal is brought when the appellant—
(a)files a notice of appeal in the court; and
(b)files a copy of the notice of appeal in the administrative office; and
(c)serves a copy of the notice of appeal on every other party directly affected by the appeal.
As noted, Mr Lenihan did not serve Mr Maehl and Ms Charlesworth with the notice of appeal until 28 May 2018. Nor did he file the notice of appeal in the District Court until 11 June 2018. It follows that none of the steps required under r 20.6(1) to bring the appeal were taken within the 20-working day period.
[28] The Harassment Act does not limit the time prescribed for bringing an appeal. Accordingly, r 20.4(3) allows this Court, by special leave, to extend the time prescribed for bringing an appeal.
[29] Mr Lenihan has filed an application seeking leave to appeal. The application is not particularly fulsome and it is misstyled. It should have been styled as an
application seeking special leave to extend the time for filing the appeal. It should have referred to the rules relied on and an affidavit should have been filed in support explaining the delays. This did not occur. Notwithstanding those difficulties, I proceed to consider the application.
[30] Ms Matheson, for the respondents, did not take issue with the late service of the notice of appeal on her clients. She responsibly advised that her clients accept that there was no prejudice to them. Ms Matheson did, however, suggest that late service on the District Court cannot be waived, referring to the Court of Appeal’s decision in Attorney-General v Howard.5 Although she brought this matter to my attention, she advised that Mr Maehl and Ms Charlesworth would abide the decision of the Court on the application, effectively, for special leave.
[31] I do not consider that Howard is authority for the proposition that the requirement in r 20.6(1)(b) cannot be waived. Rather, the case is authority for the proposition that late filing in the appellate Court, and late service on the administrative office of the body appealed against, cannot be waived by the respondent to the appeal.6 Mr Maehl and Ms Charlesworth have not purported to waive the late filing in this Court and the late filing in the District Court. They have only waived the late service on them. Howard has no application, and it does not preclude the exercise of the discretion conferred by r 20.4(3).
[32] As noted, r 20.4(3) allows this Court to grant special leave extending the time prescribed for bringing an appeal, and in my judgment, it is appropriate to allow an extension in this case for the following reasons:
(a)there is no prejudice to Mr Maehl and Ms Charlesworth, and they are abiding the decision of the Court;
(b)there is nothing to suggest that there was any prejudice to this Court or to the District Court by the failure to file the notice of appeal as required by r 20.6(1)(a) and (b);
5 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.
6 At [127].
(c)the delays in filing in the respective registries were short;
(d)the appeal arises in an unusual context and it is potentially of some wider significance going beyond the facts of this case; and
(e)while normally, a proper explanation should be provided in an affidavit as to the circumstances surrounding the failure to bring an appeal in time, nothing flows from the failure to file an affidavit in this case. There is nothing to suggest anything untoward by Mr Lenihan, and unusually, there is the application for review in these proceedings. It was filed on 18 June 2018. There was no time limit on the filing of that application, and, as Ms Stienstra frankly admitted, it was filed out of caution, in the event that leave to extend the period for filing the appeal was declined.
[33] Accordingly, I grant special leave pursuant to r 20.4(3) of the High Court Rules. I extend the time for filing the notice of appeal to 11 June 2018.
Was it open to the District Court to deal with costs following the substantive decision of 30 November 2017?
[34] Both counsel addressed this issue in their respective written submissions. However, as the hearing progressed and the issue became clearer, Ms Stienstra changed her stance. She accepted that it was open to Judge Dawson to make a costs order, notwithstanding that he had not reserved costs in his substantive decision of 30 November 2017.
[35] I do not need to make a decision as to whether that concession was properly made. Indeed, for reasons which will become clear, I consider it inappropriate for me to do so. I do observe that there are conflicting authorities, and that the law is, perhaps, not entirely settled.
[36] The starting point seems to be the decision of the Court of Appeal in Nakhla v McCarthy, where the Court stated as follows:7
7 Nakhla v McCarthy [1978] 1 NZLR 291 (CA) at 296.
… we simply remark that there can be no challenge to the right of a Judge to ensure by correction that the transcript of the reasons for the order or determination he has pronounced is not wrong … it is equally clear that in general what a judge cannot and must not attempt to do is modify or change the effect of the determination or order or judgment once it has been formally made and perfected. He is then functus officio.
[37]Although he did not cite Nakhla, the same approach was taken by Greig J in
Thomson v Thomson in relation to a costs application.8 He held as follows:9
… Once a judgment is perfected it can be changed by appeal alone. Where, as here, questions of costs are not reserved, no pronouncement is made about them and the order is perfected, there can be no power to reactivate the judgment, and alter it by adding a new matter as to costs …
This dictum was cited with approval by Cull J in O’Neill v Toogood (although not directly in the costs context),10 and adopted by Joseph Williams J in Fernandes v Fernandes (in the costs context).11 These were the cases relied on by Judge Dawson in his minute of 23 February 2018.
[38] These cases deal with the situation where the judgment has been perfected. As noted above at [15], the judgment of 30 November 2017 given by Judge Dawson has not been sealed. It has, however, been perfected because it has been formally communicated to the parties. Once a decision is communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final and irrevocable.12
[39]There is a line of authority taking a different approach than that taken in
Thomson v Thomson.
[40] In Wilson v Selwyn District Council, Fogarty J gave judgment in favour of the appellant.13 The appellant subsequently applied for costs on a 2B basis. Counsel for the respondents opposed the application, arguing that the Court was functus officio. Costs had not been sought in the papers filed with the Court. There was no application
8 Thomson v Thomson (1992) 6 PRNZ 591 (HC).
9 At 593.
10 O’Neill v Toogood [2017] NZHC 795 at [29]-[30].
11 Fernandes v Fernandes [2015] NZHC 3048 at [2]. See also Deverick v Hedley HC Auckland AP122-SW99, 23 June 2000; Mortimer v Motorsport Logistics Ltd [2013] NZHC 921 at [14].
12 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA) at [43].
13 Wilson v Selwyn District Council [2005] NZRMA 76 (HC).
for costs in the appellant’s written or verbal submissions, and the Court did not make an order for costs or reserve the question of costs in its substantive judgment. The substantive judgment had, however, been sealed by the respondents. In his subsequent costs judgment,14 Fogarty J referred to a Court of Appeal authority,15 and to a judgment of the Privy Council - Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2).16 The Court of Appeal had held that it was not in a position to rectify an omission to reserve costs in the substantive judgment.17 The Privy Council had held that its jurisdiction to make a costs order against a non-party had not been exhausted by its final judgment because the costs order was supplemental only and did not vary the final judgment.18 Fogarty J also referred to a judgment of the full Court of the Federal Court of Australia, where it was held that the jurisdiction to award costs in favour of a party does not in any way vary or alter the initial order, and that it is rather a supplemental order.19 Fogarty J concluded that the application for costs before him was supplemental.20 He said as follows:
[14] … I am impressed by the fact that I do not think I could have denied an application for costs by Mr and Mrs Rickerby had the decision gone the other way. Such an application would be supplemental. Hearing an application for costs by either the respondent or the applicant when the main judgment is silent on costs does not amount to varying or altering a judgment already given and thus undermine the principle of the need for finality of litigation. I consider that there ought to be the basic reciprocity of ability of appellants or parties served including respondents to apply for costs.
[41] Fogarty J’s approach to the matter has found favour with other Judges in this Court.21
14 Wilson v Selwyn District Council (2004) 17 PRNZ 461 (HC).
15 Moring v Reeves Moses Hudig Mortgage Nominee Co Ltd CA249/97, 29 September 1998.
16 Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145.
17 Moring v Reeves Moses Hudig Mortgage Nominee Co Ltd, above n 15, at 2. See also Minister of Education v McKee Fehl Constructors Ltd [2018] NZHC 1647 at [7]-[9].
18 Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2), above n 16, at [17].
19 Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 (FCA).
20 Wilson v Selwyn District Council, above n 14, at [14].
21 See B v B HC Dunedin CIV-2011-412-328, 26 September 2011 at [39]-[43]; Snow v Rovida [2018] NZHC 1586 at [34]; Dunsford v Shanly [2012] NZHC 2375 at [5]-[9].
[42] To the same end, this Court has held that the Thomson v Thomson approach is distinguishable, where the judgment in which costs are sought has not been sealed.22 It has been held that, in such cases, the principle of finality is not infringed.
[43] As noted, it is not appropriate for me to try and deal with the issue because, for the reasons which I will shortly explain, the issue remains live between the parties to this case.
Minute of 23 February 2018
[44] The critical point in determining this appeal/application for review is that, on 23 February 2018, Judge Dawson issued the minute which I have referred to above, concluding, in effect, that the District Court was functus officio. The key issue is whether that minute precluded the District Court from changing its mind and going on to issue the costs decision of 23 April 2018, which is the subject of the appeal and the application for review.
[45] In my view, it did, and whether or not Judge Dawson changed his mind and thought that the view he communicated in his minute was wrong.
[46] Ms Stienstra argued that the minute of 23 February 2018 was a decision, in accordance with r 11.1 of the District Court Rules 2014, which defines a judgment as being a decree or order of the Court. She argued that the minute was consistent with the substantive decision of 30 November 2017, that it was signed by the Judge, that it was communicated to the parties, and that the matter ought to have ended there. She submitted that it was wrong for Judge Dawson to receive the subsequent memoranda filed by the parties, and that he had no jurisdiction to issue a fresh decision, reversing his minute, and awarding costs in favour of Mr Maehl and Ms Charlesworth. Rather, she said Mr Maehl and Ms Charlesworth ought to have sought a recall of the minute or appealed it.
[47] Ms Matheson submitted that the minute was not a decision or judgment. She argued that it was not drawn up as a judgment and that it was not signed by the Judge. She noted that it was referred to as being a “directions” which she submitted are
22 Sao Paulo Alpargatas SA v But Fashion Solutions Comercio E Industria de Artigos Em Pele LDA [2013] NZHC 602 at [7]-[8].
normally made in respect of procedural and/or interim matters. She also argued that the minute was not a judgment in substance, noting that the issue of jurisdiction was raised for the first time by Judge Dawson in the minute. She argued that the minute should properly be construed as a communication from the Judge to counsel raising a point of law, and directing counsel to three cases, to which the parties were entitled to respond by memorandum. She argued that the fact that Judge Dawson issued the costs decision of 23 April 2018 confirmed that, in the Judge’s mind, no final decision in respect of the costs application had earlier been given. She argued that the Court did not become functus officio when it issued the minute, and that no application to recall the minute, or appeal against the minute, was required.
[48] In my view, the minute did communicate to the parties a decision made by the Judge. It could not be revisited by the Judge and it was only amenable to recall, appeal or review.
[49] Section 123 of the District Court Act 2016 defines a decision as including “a judgment and an interim or a final order”. This inclusive definition is wide enough to include minutes which communicate a judgment or decision made by the Court. Section 124(2) of that Act provides parties with a general right of appeal against “the whole or a part of a decision made by the District Court in or in relation to the proceeding”.
[50] Whether or not a minute constitutes a decision may be a contextual issue, but the minute in question in this case was, in my view, clearly a decision. It purported to be a final determination of an issue in the proceedings – namely whether Mr Maehl and Ms Charlesworth were entitled to costs in the circumstances which had arisen. It was made clear what the decision of the Court was, and that that decision was intended to be final. The Judge did not invite submissions, and the principle of finality discussed above applies. In my view, the comments of the Court of Appeal – albeit given in a different context – in Goulding v Chief Executive, Ministry of Fisheries apply:23
[43] The common law principle applicable to the present case can accordingly be summarised in this way. A valid administrative decision in the
23 Goulding v Chief Executive, Ministry of Fisheries, above n 12.
exercise of a statutory power, which is the outcome of a completed process, but which has not been formally communicated to interested parties, has not been perfected. It may be revoked and a fresh decision substituted at any time prior to communication of it to affected persons in a manner which indicates intended finality. Once such a decision is so communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final. A final decision which is made in the exercise of a power which affects legal rights, including those arising from the grant of a licence, is irrevocable. So is any other decision made under a statutory power where the Act explicitly or implicitly provides that once finally exercised the power of decision is spent. That is the position under the common law …
[51] Judge Dawson could have recalled his decision if one or other of the criteria permitting a recall discussed by this Court in Horowhenua County v Nash (No 2) could have been made out.24 But Judge Dawson was not asked to recall his decision, and he did not purport to do so. Rather, he issued a different decision some two months later. The two decisions are irreconcilable and cannot stand against each other.
[52] In my judgment, the Judge should not have issued the second costs decision. Rather, he should have indicated to counsel, when they filed further memoranda after the 23 February 2018 minute, that the Court was then functus officio, and that the appropriate course was for counsel either to challenge the decision communicated by the minute and/or ask him to recall his judgment if they thought that that course was appropriate.
[53] In my judgment, Judge Dawson had no jurisdiction to issue the conflicting costs decision of 23 April 2018, and he erred in law in doing so.
Result
[54] The appeal is allowed. There is no need to deal separately with the application for review. The costs decision of 23 April 2018 is set aside.
[55] I do not consider that it is appropriate to remit the matter back to the District Court. The operative decision is now that communicated by the minute of 23 February 2018. It remains open to Mr Maehl and Ms Charlesworth to seek leave to extend the
24 Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC) at 633. This decision was applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76, and by the Court of Appeal in Rainbow Corp v Hyde Holdings (1992) 5 PRNZ 493 (CA); Unison Networks Ltd v Commerce Commission [2007] NZCA 49; Erwood v Glasgow Harley [2007] NZCA 88, [2007] 18 PRNZ 336.
time to file a notice of appeal against that decision and/or to seek judicial review of the same. That is ultimately a matter for them, although I would urge the parties to try and resolve the dispute between them. The amount in issue is very small, and there can be no monetary justification for seeking to litigate this issue further.
Costs
[56] I did discuss with counsel the issue of costs. They agreed that if I were to set aside the costs judgment of 23 April 2018 and remit the matter to the District Court, costs should lie where they fall.
[57] I have not remitted the matter to the District Court for the reason I have set out above. Accordingly, the agreement reached between counsel does not apply.
[58] Mr Lenihan, as the successful party, is prima facie entitled to an award of costs, although as I have indicated above, I express the hope that the parties can reach a sensible and economically justifiable solution.
[59]If the issue of costs cannot be agreed, then I direct as follows:
(a)any application for costs and/or disbursements is to be filed within 10 working days of the date of this judgment;
(b)any reply is to be filed within a further 10 working days;
(c)memoranda are not to exceed five pages.
I will then deal with the issue of costs/disbursements on the papers, unless I require the assistance of counsel.
Wylie J
Solicitors/counsel:
BSA Law/S Stienstra, Auckland
Christopher Taylor/Zara Matheson, Auckland
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