Mantell Investments Limited v Police

[2013] NZHC 2389

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-000206 [2013] NZHC 2389

BETWEEN  MANTELL INVESTMENTS LIMITED Appellant

ANDNEW ZEALAND POLICE First Respondent

MEDICAL OFFICER OF HEALTH Second Respondent

CHRISTCHURCH DISTRICT LICENSING AGENCY INSPECTOR Third Respondent

Hearing:                   (On Papers)

Counsel:                  A J Eveleigh for Appellant

K South, for Respondent

Judgment:                12 September 2013

COSTS JUDGMENT OF WHATA J

[1]      The appellant filed an appeal against the decision of the Liquor Licensing Authority, but withdrew that appeal on 7 June, shortly prior to the allocated fixture. The reason for this is said to be related to the release of the Christchurch City Council’s alcohol policy, in effect rendering the appeal moot.

[2]      The respondent’s contend that the Local Alcohol Policy (“LAP”) provides no reasonable basis for rebutting the ordinary presumption in favour of costs on discontinuance.  It says the LAP process was well advertised and that the appellant

must have appreciated the risk that it might change in any event.

MANTELL INVESTMENTS LIMITED v NEW ZEALAND POLICE [2013] NZHC 2389 [12 September 2013]

[3]      The  appellant  responds  citing  the  decision  of  Simon  France  J  in  Olive Francis Retirement Home Ltd v Director-General of Health.  In that case the Judge observed:1

[17]      ... [A] by-product of the defendant’s decision concerning closure is that these proceedings were rendered nugatory. The discontinuance is something that has had to happen because the subject matter of the proceedings has been overtaken by other events.

Assessment

[4]      I commence my assessment by returning to the appeal which sought the following relief:

2.1The  sole  part  of  the  determination  appealed  from  relates  to  the renewal of the on license [sic] specifically the decision;

2.1.1    Truncating the term of the license [sic] to 16 months from

17 August 2012; and

2.1.2To impose conditions specifically a one way door policy commencing at 12.30am each day and with closure for the sale and supply of liquor each day at 2.00am.

[5]      It seems to me on its face that the LAP affected only the second part of the relief sought, and not the first part.   The proceedings were not therefore rendered entirely moot by the new LAP though I can understand why it is the appellant might have considered overall that it was pointless pursuing the appeal in toto.

[6]      Be that as it may, the presumption in favour of costs for a respondent on discontinuance reflects two key principles, namely that the successful party shall receive its costs and secondly that an award of costs should be predictable.  While I accept the reasoning of Simon France J in the Olive Francis Retirement Home Ltd v Director-General of Health, the application of that reasoning and the principles stated there will depend on the facts of the case.

[7]      In this case, I am satisfied that it would not be appropriate to rebut the ordinary presumption - the  respondents were obliged to expend resources to meet

the  appeal  and  there  is  nothing  to  suggest  that  they  were  responsible  for  the

1      Olive Francis Retirement Home Ltd v Director-General of Health HC Auckland CIV 2005-404-

1367, 13 July 2005.

Council’s change of policy.  I note in this regard that the costs actually incurred are substantially less than costs according to scale so an award in that amount is appropriate.

[8]      Accordingly, there shall be an award of costs in favour of the respondent in the sum of $3,681.40 plus GST, plus a filing fee of $108. An amount of $4,342.41 is therefore awarded.

Solicitors:

A J Eveleigh, Christchurch

Raymond Donnelly & Co, Christchurch