Maori Trustee v Hill - [2017] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CIV-2016-454-85 [2017] NZHC 2758

BETWEEN
MĀORI TRUSTEE

Judgment creditor

AND

FREDRICK PIRIPI KINGI HILL Judgment debtor

on the papers

Counsel:

C M Reuhman for the Judgment creditor
Mr Hill in person

Judgment:

10 November 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

Introduction

[1] On 29 September 2017 I gave judgment dismissing an application by Mr Hill to set aside a bankruptcy notice issued against him. At [80] of my judgment I invited the parties to file memoranda on costs, noting:1

The Trustee is entitled to costs. In view of the fact that Mr Hill has attempted to re-run some of the same arguments which have been rejected by the Courts in the past, it may be that the case is appropriate for an award of increased or indemnity costs. The Trustee may file a memorandum on costs within 15 working days of this judgment. Mr Hill may file a memorandum in reply on costs, within 15 working days of service of the Trustee’s memorandum.

[2] I have now received memoranda from the parties. The Māori Trustee seeks
2B costs with an uplift of 50 per cent. Mr Hill submits costs should be reserved pending the outcome of further filings for appellate proceedings.

1 Māori Trustee v Hill [2017] NZHC 2377.

Principles

[3] Rule 14.1 of the High Court Rules 2016 provides that costs are at the discretion of the Court. Subject to that broad discretion, a number of general principles are applicable to the determination of costs. One of them is that the party who fails in the proceeding should pay the costs of the party who succeeds.2

[4] Rule 14.3 provides for three separate categories of civil proceedings for costs purposes (categories 1, 2 and 3). A category 2 proceeding is a proceeding “of average complexity requiring counsel of skill and experience considered average in the High Court.”

[5] Appropriate daily recovery rates for each category of proceeding are set out in Schedule 2 to the High Court Rules. The daily rate for a category 2 proceeding is
$2,230.

[6] Rule 14.5 and Schedule 3 to the High Court Rules together set out times which are considered reasonable for cost recovery purposes, in respect of particular steps taken in the course of a civil proceeding. Three separate time “bands” are provided for (bands A, B and C). Band B will be applicable where the Court considers that a “normal amount of time” is reasonable for taking the steps.

[7] Rule 14.6(1) allows the Court to exercise its discretion to grant increased costs, over and above the amounts that would be payable under the applicable category and band in Schedules 2 and 3 to the High Court Rules. Under r 14.6(3):

(3) The court may order a party to pay increased costs if:

…

(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 2758
Decision Date: 10 November 2017

CaseChat Overview and Summary

The High Court of New Zealand considered an application for costs following an unsuccessful attempt by Mr. Hill to set aside a bankruptcy notice. The Māori Trustee, as the judgment creditor, sought costs on a category 2 basis with an uplift of 50%, while Mr. Hill, the judgment debtor, argued that costs should be reserved pending further filings, including an appeal. The court assessed the matter based on the High Court Rules 2016, which provide that costs are at the discretion of the Court and generally, the party who fails in the proceeding should pay the costs of the party who succeeds. The court found that the Māori Trustee was entitled to costs at a category 2 level, which was calculated at $9,366. However, the court determined that an uplift of 20% was appropriate due to Mr. Hill's reiteration of arguments that had been previously dismissed, constituting an abuse of process. The court rejected Mr. Hill's broader arguments and his claim for an independent fee schedule, which was not accepted by any party. Consequently, the Māori Trustee was awarded costs of $11,239.20, plus disbursements to be fixed by the registrar.

Orders