Lwee v Tenancy Tribunal

[2013] NZHC 2169

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000583 [2013] NZHC 2169

BETWEEN	VIOLET LWEE First Applicant
AND	JIMMY YAP Second Applicant
AND	TENANCY TRIBUNAL First Respondent
AND	JASON TURNER Second Respondent

Hearing:	23 August 2013 (On the papers)
Counsel:	K J McCoy for First and Second Applicants J E Bayley as Counsel Assisting Mr Turner in person
Judgment:	26 August 2013

COSTS DECISION OF PANCKHURST J

Introduction

[1]      On  27  June  2013  I  heard  this  judicial  review  application  in  which  the applicants claimed that a Tenancy Tribunal Adjudicator had erred, essentially in relation to the principles of natural justice, with the result that his determination should be set aside. After hearing argument, the application was dismissed.

[2]      Prior to the hearing I learnt that the Tribunal would not be appearing as a party, and that the tenant, Jason Turner the second respondent, was to appear in person.  I concluded that it was an appropriate case in which to appoint counsel to assist the Court.  Mr Bayley accepted this role.  In the event he performed a valuable

role, in both ensuring that the full history of the proceeding before the Tribunal was

LWEE, YAP v TENANCY TRIBUNAL AND TURNER [2013] NZHC 2169 [26 August 2013]

available in this Court; and then in making submissions referable to the procedural processes of the Tribunal.

[3]      Following delivery of an oral decision, Mr Bayley indicated that he had been instructed to seek costs.  This aspect was reserved.  Memoranda have been filed. Counsel assisting’s costs charged to the Ministry of Justice were $2901.70, including disbursements of $169.30. An order for payment of this sum was sought.

Section 99A:  Judicature Act 1908

[4]      This section enables costs to be awarded in favour of the Attorney-General, Solicitor-General or any person appointed as counsel assisting.   No criteria are prescribed;  subsection 1 simply provides that the Court may make “such order as it thinks just”.

[5]      The memoranda of counsel refer to a few cases decided with reference to s 99A.  However, the subject matter of these was rather different to this case and I do not find such cases particularly helpful.

[6]      In any event, the section confers a discretion to make such order as the justice of the case requires.  This suggests to me that the individual circumstances of the case are likely to be determinative. There is no presumption for, or against, an award of costs.  A Judge is to do what he thinks is just.  Here, I think there are two main considerations:

(a)       the nature of the proceeding, that it was a judicial review application relating to a Tenancy Tribunal decision, and

(b)      the merits of the judicial review application. I shall consider each in turn.

Analysis

[7]      As already noted the context of this case was a Tenancy Tribunal hearing. That might militate against the appropriateness of a costs award in some instances.

The Tribunal’s processes are designed to be simple and accessible; so that parties can easily represent themselves.  That occurred in this instance, with the landlords both appearing and Mr Turner also representing himself as the tenant.   In the result the adjudicator ordered payment of about $13,000 to Mr Turner.

[8]      However,  the  landlords  engaged  counsel  for  the  purpose  of  the  judicial review.  I make no criticism of that, but it was influential in relation to my decision to appoint counsel assisting.  Moreover, as noted above counsel played an active and valuable role.

[9]      The second aspect is the merit of the judicial review application.  The main complaints were that the first applicant, Violet Lwee, was not cited as a party to the dispute and the order should not have been made against her; and secondly that the landlords were not forewarned of the case they had to meet.  In light of the record from the Tribunal hearing, and after hearing submissions, I was in no doubt that neither ground of review had any merit.

[10]     In these circumstances I am satisfied that it is just to award costs.  I consider a just award is that the applicants pay the sum of $2,000 by way of costs to the Ministry of Justice.  I so order.

Solicitors:

K J McCoy, Christchurch

J E Bayley, Christchurch