McGreevy v CRC Limited - [2019] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000770

[2019] NZHC 1143

BETWEEN
PATRICK JOHN McGREEVY

Appellant

AND

CRC LIMITED

Respondent

Hearing: 30 April 2019

Appearances:

A J Bailey for Appellant

W J Hamilton for Respondent

Judgment:

23 May 2019

JUDGMENT OF OSBORNE J

The appeal

[1] Patrick McGreevy appeals against a decision of the District Court. That Court, in allowing Mr McGreevy’s appeal against a decision of the Tenancy Tribunal, awarded Mr McGreevy costs and disbursements. The Court applied the principle that costs should follow the event and the initial calculations should be on a 2B basis. None of that is in issue on this appeal.

[2] In issue is the District Court’s decision to reduce a full 2B calculation ($3,687.50) by 40 per cent ($1,475), thereby awarding Mr McGreevy a sum of
$2,212.50 as costs.

The substantive background

[3] Mr McGreevy had applied for orders under the Residential Tenancies Act 1986.

McGREEVY v CRC LIMITED [2019] NZHC 1143 [23 May 2019]

[4] Mr McGreevy was at the relevant time subject to an Extended Supervision Order (ESO) under the Parole Act 2012. CRC provided to the Department of Corrections the accommodation and monitoring services in respect of Mr McGreevy (and others).

[5] Following an initial hearing, the Tribunal raised an issue as to whether it had jurisdiction to hear the application. The particular issue related to whether the premises occupied by Mr McGreevy constituted “residential premises” as defined by s 2(1) of the Act.

[6] The parties filed further submissions on the question of jurisdiction. Mr Hamilton, for CRC, relied on conclusions reached in a decision of this Court in Anderson v FM Custodians Limited.1 In Anderson the Court concluded that the term “residential premises” as used in both ss 2 and 65 of the Act refers to premises which may be lawfully used for residential purposes by any person.2 As the resource consent applying to the premises in question precluded their occupation other than by a facility manager, the premises were found not to be “residential premises” because they could not be used lawfully by “any person” (such as Mr and Mrs Anderson who were not managers).

[7] The Adjudicator found that the Tribunal did not have jurisdiction. The reason for that conclusion was summarised:3

The premises where [the appellant] resides are not premises used or intended for occupation by any person as a place of residence. They are premises where offenders subject to ESOs reside after their release from prison and those offenders are subject to certain restrictions imposed, for example, by the High Court and/or the Parole Board.

(emphasis added)

[8] In reaching that conclusion the original Adjudicator accepted the submissions for CRC. He rejected a point of distinction identified by Mr Bailey for Mr McGreevy. Mr Bailey had submitted that the position in Anderson was completely different to Mr McGreevy’s position. Mr Bailey had noted that in Anderson the law did not permit

1 Anderson…

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.

Continue reading McGreevy v CRC Limited

Details

AGLC: McGreevy v CRC Limited [2019] NZHC 1143
Case: [2019] NZHC 1143
Decision Date: 23 May 2019

CaseChat Overview and Summary

Patrick McGreevy appealed against the District Court's decision to reduce his costs award after allowing his appeal against a Tenancy Tribunal decision. The District Court had reduced the full 2B calculation of costs ($3,687.50) by 40 percent ($1,475), awarding McGreevy $2,212.50 in costs. The primary issue before the High Court was whether the District Court erred in reducing the costs award. The appeal raised questions about the principles governing costs reduction where a respondent abides the outcome of an appeal.

The Court considered the applicable principles governing costs in appeals. The Court noted that the primary principle is that costs should follow the event. However, the Court may reduce costs if the respondent has responsibly abided the outcome of the appeal. The Court further noted that the decision of the respondent not to seek costs in the Tenancy Tribunal should not carry weight in determining the costs in the District Court appeal.

The Court found that the District Court erred in reducing the costs award by 40 percent. The Court held that the Anderson and Parbhu decisions, which the District Court relied on, were irrelevant to the costs outcome. Additionally, the Court found that the District Court erred in attaching weight to CRC's decision not to seek costs in the Tenancy Tribunal. The Court concluded that a 15 percent reduction in costs would be appropriate to reflect CRC's responsible approach in abiding the outcome of the appeal.

The High Court set aside the District Court's costs award and ordered CRC to pay McGreevy $3,134.38 in costs of the District Court appeal, along with his disbursements. The Court further ordered CRC to pay McGreevy the costs of the High Court appeal, fixed in the sum of $3,902.50 with disbursements in the sum of $580.00. The District Court's award of disbursements remained unaltered.

Orders