Lyger Investments Limited v Young

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KOTI MATUA 0 AOTEAROA

TAURANGA MOANA ROHE

CIV-2018-470-167 [2019] NZHC 550
UNDER the Sale and Supply of Alcohol Act 2012
IN THE MATTER of an appeal pursuant to section 162 against
a decision of the Alcohol Regulatory and Licensing Authority

BETWEEN LYGER INVESTMENTS LIMITED
Appellant

AND GARETH NORMAN EDWARD YOUNG
First Respondent
COMMISSIONER OF POLICE Second Respondent

Hearing: On the papers

Counsel: R L M Davies for applicant

A J Pazin first respondent
R W Jenson for second respondent

Judgment: 25 March 2019

JUDGMENT OF KATZ
[Costs]

This judgment was delivered by me on 25 March 2019 at 4:00 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Harkness Henry, Hamilton

Buddle Findlay, Wellington STEPHEN HEWLETT
Pollett Legal Limited, Tauranga Deputy Registrar
High Court of New Zealand

LYGER INVESTMENTS LIMITED v YOUNG & COMMISSIONER OF POLICE [2019] NZHC 550 [25 March 2019]

Introduction

Lyger Investments Limited ("Lyger") operates a nightclub in Tauranga, the
Bahama Hut. The Alcohol Regulatory and Licensing Authority overturned a decision by the Tauranga District Licensing Committee to renew Lyger's on-license for the Bahama Hut. The Authority directed that Lyger's on-license expire on 10 December 2018. Lyger filed an appeal against the Authority's decision and sought a stay of the decision pursuant to s 153 of the Sale and Supply of Alcohol Act 2002, until its appeal is heard and determined.
On 7 December 2018, I delivered a judgment in which I declined Lyger's
application for a stay.¹ Having successfully opposed the stay application, both respondents now seek an award of costs.

Costs

The second respondent, the Commissioner of Police, seeks costs of $3,568 on
a 2B scale basis. Lyger does not take any issue with those costs.
Nor does Lyger take issue with most of the costs items claimed by the first
respondent, who is the Tauranga District Licensing Inspector ("Inspector"). One item, however, is disputed. Lyger challenges whether time claimed for preparing two sets of further written submissions following the stay hearing are properly claimed by the Inspector. The Inspector seeks $6,913 for costs on a 2B scale basis, as set out below. Lyger submits that the Inspector is only entitled to $5,798, and not the $6,913 sought.

Relevant law

The general rule is that the party who fails with respect to a proceeding or an
interlocutory application should pay costs to the party who succeeds.' Costs in relation to interlocutory applications are decided in accordance with the costs rules unless there
Lyger Investments Ltd v Young [2018] NZHC 3222.
High Court Rules 2016, r 14.2(1)(a).

are special reasons to the contrary.³ An award of costs should reflect the complexity and significance of the proceeding.`

Costs are assessed by calculating the appropriate rate for the time considered
reasonable for "each step reasonably required in relation to the proceeding or interlocutory application".⁵ Schedule 3 of the High Court Rules 2016 sets out `preparation of written submissions' as a specific step in interlocutory applications. Schedule 3 does not specifically provide for further written submissions, but r 14.5 provides that a reasonable time for a step is to be determined either by reference to the Schedule or by analogy to the steps in the Schedule.

Should the Inspector be awarded additional costs in respect of the two further written submissions (both dated 6 December 2018)?

Lyger submits that the High Court Rules 2016 only allow for one set of
submissions on an interlocutory application, and the Court should not therefore make an award in respect of the two further written submissions filed by the Inspector.
The further submissions were filed to respond to questioning from the Court,
during the hearing, as to whether Lyger's appeal would be rendered nugatory in the absence of a stay. This issue was fairly complex, both factually and legally. The further submissions filed by the Inspector addressed the issue comprehensively and were of assistance to the Court. In my view, the further submissions were reasonably required to deal with an issue that all parties failed to adequately cover in their initial submissions (or during the course of the hearing itself).
To acknowledge the supplementary nature of the further submissions, the
Inspector seeks costs at a reduced time allocation of 0.5 days, rather than the 1.5 days claimed for the primary submissions.
In my view it is appropriate and in the interests of justice to award the claimed extra costs allocation of 0.5 days in respect of the further submissions filed.
Rule 14.8.
Rule 14.2(1)(b).
Rule 14.2(1)(c).

Result

[11] I order Lyger to pay costs to the first respondent in the sum of $6,913 and costs to the second respondent in the sum of $3,568.

Katz J

Lyger Investments Limited, the operator of a nightclub in Tauranga known as the Bahama Hut, sought a stay of a decision by the Alcohol Regulatory and Licensing Authority to overturn the renewal of its on-license. The Authority had directed that Lyger's on-license expire on 10 December 2018. After the High Court declined the stay application, both the Authority and the Commissioner of Police sought costs against Lyger. The Commissioner's costs were undisputed. The Authority claimed additional costs for two sets of further written submissions. Lyger challenged this claim, contending that the additional submissions were not properly compensable under the High Court Rules. The court had to determine whether the Authority was entitled to costs for the additional written submissions.

The court considered whether the High Court Rules 2016 permitted costs for additional written submissions following an interlocutory application. While the rules did not specifically provide for such submissions, they did provide for reasonable time to be allocated for each step in such applications. The court had to decide whether the additional submissions were a reasonably required step given the complexity of the issue raised during the hearing. The Authority argued that the submissions were necessary to address a complex issue that had not been adequately covered by the parties' initial submissions. The Authority claimed a reduced time allocation for the additional submissions, acknowledging their supplementary nature.

The court found that the additional submissions were reasonably required to address a complex issue that none of the parties had adequately covered. The Authority's submissions comprehensively addressed the issue and were of assistance to the court. Therefore, the court concluded that it was appropriate to award the Authority the claimed additional costs for the further written submissions. The court also noted that the Authority had reduced the time allocation for these submissions in recognition of their supplementary nature.

The court ordered Lyger to pay the Authority $6,913 in costs and the Commissioner $3,568 in costs. The Authority was awarded the additional costs for the two sets of further written submissions, as these were reasonably required to address the complex issue raised during the hearing. The Commissioner's costs were not disputed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established