Marr v Complaints Authority Assessment Committee 413

[2020] NZHC 2859

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-00546

[2020] NZHC 2859

IN THE MATTER

of charges laid under s 91 of the Real Estate Agents Act 2008

BETWEEN

BERNADETTE MAKUINI MARR

Appellant

AND

COMPLAINTS AUTHORITY ASSESSMENT COMMITTEE 413

Respondent

On the papers:	At Auckland
Judgment:	30 October 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 30 October 2020 at 3 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MARR v COMPLAINTS AUTHORITY ASSESSMENT COMMITTEE 413 [2020] NZHC 2859 [30 October

2020]

[1]    The respondent, the Complaints Assessment Committee 413 (“the Committee”), seeks costs against the  appellant,  Bernadette  Makuini  Marr,  after Ms Mass discontinued her appeal against the liability and penalty decisions of the New Zealand Real Estate Agents Disciplinary Tribunal (“the Disciplinary Tribunal”) finding her liable of misconduct and ordering her salesperson licence be cancelled.

[2]    The Committee seeks increased costs on the basis the appellant has contributed unnecessarily to the time and expense of the proceeding. Ms Marr accepts an award of scale costs is appropriate but opposes any award of increased costs. The key issue for determination issue is whether an award of increased costs is warranted.

Scale costs

[3]    Rule 15.23 of the High Court Rules 2016 provides that where an applicant discontinues an appeal, the applicant must pay the respondent’s costs. On this basis the Committee, as the successful party, is entitled to costs.

[4]    Ms Paterson, on behalf of the Committee, categorises the proceeding as 2B and identifies the 2B scale costs as totalling $14,868.00. Ms Marr accepts that scale cost ought to be calculated on a 2B basis and takes no issue with the Committee’s calculation of those costs. I too am satisfied the proceeding is appropriately categorised and the costs sought are reasonable and appropriate.1

The claim for increased costs

[5]    The Committee then seeks increased costs pursuant to r 14.6(3) of the High Court Rules. This rule provides that the Court with a discretion to order increased costs where:

…

(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

1      The Committee seeks costs for the preparation of written submissions pursuant to item 56 of sch 3 to the High Court Rules. No written submissions were ever filed by the Committee, however, it is appropriate to award costs for this step as the Committee’s submissions were at a well advanced stage, being due the same day Ms Marr discontinued the appeals.

(i)      failing to comply with these rules or with a direction of the court; or

(ii)     taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)    failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument.

[6]    The Committee submits that these three grounds set out at (i)-(iii), either separately or together, justify an increased costs award. Each of the grounds is covered below.

Failure to comply with Court orders

[7]    Ms Paterson submitted the appeal was characterised by Ms Marr’s continuous failure to comply with directions of the Court, which in turn led the Committee to incur unnecessary costs responding to various court interventions and adjustments of timetabling. Ms Marr acknowledged she failed to comply with court orders but says her lack of compliance was not deliberate. Rather, as a self-represented litigant she found it difficult to comply with court orders and this difficulty was exacerbated by her personal circumstances. In any case, she says her lack of compliance did not result in any increased cost to the Committee, nor did it result in any prejudice.

Taking or pursuing unnecessary steps

[8]    The Committee also submits that Ms Marr pursued a number of unnecessary and meritless interlocutory applications that put the Committee to significant extra costs. The Committee was not a party to these applications, however it remained involved for the purpose of assisting the Court as Ms Marr and the various subjects of the applications were unrepresented.

[9]    Ms Marr contends that she has not pursued any unnecessary steps that would justify an award of increased costs against her.

Failing without reasonable justification to admit facts

[10]   Ms Marr was found liable of misconduct for the forgery of a sale and purchase agreement relating to the “mortgagee sale and rescue” of her family home. The Committee submits that in bringing this appeal Ms Marr continued, without reasonable justification, to dispute the legitimacy of the sale and purchase agreement.

Discussion

[11]   Having considered the matters raised by the parties I am not satisfied that this is an appropriate case for increased costs. The three issues raised by the Committee are in fact interrelated and the reasonableness of Ms Marr’s actions cannot be understood without considering the issues together.

[12]   In particular it is difficult to see how it could be unreasonable for Ms Marr to refuse to accept responsibility for the forgery, given it was essentially the central matter in the appeal. The various non-party disclosure applications, largely required to be facilitated by the Committee, were all directed to obtaining further evidence to show why the finding of the Disciplinary Tribunal was wrong and the appeal was not ultimately pursued when no additional evidence was forthcoming. The fact that ultimately Ms Marr did not have the resources to pursue these applications to conclusion does not mean that it was an inappropriate or entirely unreasonable strategy, and I note the Committee did not oppose the process at the time the appeal was first filed, albeit indicating it would be likely to oppose any subsequent application to adduce further evidence. Likewise, while clearly the non-party disclosure process did involve further attendances on behalf of the Committee than would normally be expected in an appeal of this type, both in setting up the non-party disclosure process and subsequent attendances when that process ran into difficulties, those additional attendances are adequately addressed by way of scale costs.

Decision

[13]Ms Marr is to pay costs on a 2B basis in the sum of $14,868.00.

[14]The security of $1,115.00 held in Court is to be released to the Committee.

Powell J