Munro v Collection House (NZ) Limited HC Auckland CIV-2010-404-8473
[2011] NZHC 566
•10 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-8473
BETWEEN PETER R MUNRO Appellant
ANDCOLLECTION HOUSE (NZ) LIMITED Respondent
Hearing: 17 May 2011
Appearances: Appellant in Person
MRobinson for Respondent
Judgment: 10 June 2011 at 11:30 AM
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 10 June 2011 at 11:30 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
PR Munro, C/- 14A Target Road, Totara Vale, North Shore City, Auckland ([email protected] ) MJ Robinson, Turner Hopkins, Auckland ([email protected] )
MUNRO V COLLECTION HOUSE (NZ) LIMITED HC AK CIV-2010-404-8473 10 June 2011
Introduction
[1] Mr Munro had a credit card. It proved to be far less of a benefit to him than he might have hoped when, in November 2004, he applied, to Westpac New Zealand Limited (―Westpac‖) for a ―Low Interest MasterCard‖. In November 2009, Westpac engaged the first respondent, Collection House (NZ) Limited (―Collection House‖), to recover an outstanding amount, on Mr Munro’s card, of $22,558.83 plus collection costs of $6,344.67.
[2] Westpac had written to Mr Munro on 20 August 2009, following an inquiry by him regarding his credit card account, enclosing a ―Conditions of Use‖ brochure. Mr Munro responded by letter dated 28 August 2009, requesting a copy of the application/contract he signed when he applied for the card. There was no evidence that that document was provided to him. The next communication appears to have been a letter dated 1 October 2009 addressed to Mr Munro at his Post Office box number headed ―Final Warning – Please Read Carefully‖ in which the amount due was said to be $3,500. The letter advised Mr Munro that it was the last notice he would receive before his account was referred to an external collections agent for recovery, and further warned that any collection costs would be added to the outstanding balance and be payable by him. Mr Munro did nothing.
[3] A letter of demand was sent by Collection House to Mr Munro’s Post Office
box in Glenfield on 3 November 2009 requiring payment of $28,903.50 in full by
10:00 am on 10 November 2009. Mr Munro did not pay in terms of the demand and
a letter described as a ―Final Reminder‖ was sent to him by Collection House on
15 November 2009 demanding payment within seven days.
[4] On 23 November 2009, Mr Munro swore an affidavit, described as an
―AFFIDAVIT OF NOTICE OF DISPUTE OF DEBT‖, which was intended for consideration by Collection House. The affidavit alleged that Westpac was in default of two requests, one verbal and one written, for a copy of the credit contract to prove the existence of a debt between Mr Munro and the bank. It asserted that no remedy existed on the bank’s demand without proof of contract. The affidavit threatened that, should Collection House register anything negative against Mr Munro’s credit
history without proof of debt, they would be sued for up to $500,000. The affidavit continued:
Failure to supply a copy of the contract or register a dispute against the claims made herein will result in an automatic default judgement and permanent and irrevocable estoppel by acquiescence baring (sic) you from taking any further action on this disputed account.
Affected parties wishing to dispute information contained herein, or make their own counterclaims must respond appropriately within TEN (10) days of service of notice of this action via recorded delivery service at the address herein provided.
[5] The affidavit was received by Collection House, by courier, on
24 November 2009. Mr Mallard, a legal officer employed by Collection House, considered that Mr Munro’s affidavit was simply equivalent to a letter outlining his position that he disputed the debt. His instructions from Westpac were that each customer had a copy of the credit card terms and conditions and they were adamant that the debt remained outstanding. It was said that the terms and conditions are made available to the customer at all times and any changes are notified to the customer by way of advertising and public notices.
[6] It appears that Mr Mallard did not respond to Mr Munro within the 10 day period. On 9 December 2009, Mr Munro swore another affidavit, this time headed
―AFFIDAVIT OF NOTICE OF NON-RESPONSE AND DEFAULT JUDGEMENT‖. This affidavit claimed that Westpac had failed to honour Mr Munro’s two requests for a signed copy of the contract, and that Collection House had failed to produce a copy of the contract within the time specified. It was also claimed that Collection House had failed to ―dispute or counter claim the Affidavit of Notice of Dispute of Debt by the recorded delivery in the time specified.‖ These failures, Mr Munro claimed, had ―resulted in an automatic default judgement and permanent and irrevocable estoppels by an acquiescence baring (sic) you from taking any further action on Reference No. 4250
8008 656.‖
[7] The second affidavit was received by Collection House on
10 December 2009. Mr Mallard regarded it as a further letter from a person whom
he described as ―a Judgment Debtor‖ setting out that he disputed the debt. This time,
however, Mr Mallard reacted positively to Mr Munro’s complaint about failure to supply a copy of the contract. On 21 December 2009, Mr Munro was handed, in person, a copy of the MasterCard application form, a Final Reminder Letter dated
11 December 2009, and a number of credit card statements, beginning with one dated 19 April 2009 informing Mr Munro of the then outstanding balance of
$21,547.10 and advising him that his account had been cancelled.
[8] On 16 December 2009 Mr Munro sent Collection House a letter by facsimile saying that he had received a voicemail message on his mobile phone, logged at
8:13 pm on 15 December 2009, in which the caller identified himself as an agent of Collection House and requested Mr Munro return the call, which request Mr Munro said he would decline.
[9] Mr Munro went on to say that he did not wish to be harassed on the matter which had come to a close, he said, 10 days after the sworn Affidavit of Dispute of Debt was delivered to Collection House on 24 November 2009. He said that both the required means of response and the timeframe in which to respond were made very clear in the affidavit. Mr Munro said that because Collection House had failed to request an extension of time an estoppel had now taken effect, and that any further correspondence would be taken as harassment and dealt with accordingly.
[10] Mr Munro did nothing in response to the provision of information just prior to Christmas, with the result that Collection House sent him a letter dated
29 January 2010 headed ―Final Demand – Last Opportunity‖. Mr Munro was informed in the letter that unless payment in full was received by Collection House on or before 5 February 2010, the agency would recommend to Westpac that it should commence or continue legal proceedings against Mr Munro for the recovery of the debt, interest, and legal costs. Collection House informed Mr Munro, as it had in the past, that the agency was prepared to discuss alternative payment arrangements to repay the outstanding balance, and provided him with particulars of a number of payment facilities which the agency was willing to discuss with him.
[11] Mr Munro did not accept the invitation to discuss the debt with
Collection House. Instead, he issued proceedings in the District Court, claiming that
Collection House had harassed him and seeking a harassment order. On
25 March 2010, the second respondent, Mr Mitchell, a solicitor employed by Turner Hopkins, wrote to Mr Munro on instructions from Collection House, informing him that if he did not discontinue the harassment proceedings by 31 March 2010, Collection House would file a strike-out application and seek costs.
[12] In the letter, Mr Mitchell asserted that Mr Munro’s claim had no prospect of success. He said that the claim failed to plead any causes of action and was clearly so untenable that it could not possibly succeed. He explained that that view was
based on a number of propositions including:
Mr Munro was not able to claim harassment against a company under the
Harassment Act 1997.
There was no evidence to support any harassment.
Collection House was legally entitled to contact him to pursue the outstanding MasterCard debt owed to Westpac.
The affidavits couriered by Mr Munro to Collection House were no more than letters outlining his position in that he disputed the outstanding balance
on the basis that he did not have a copy of the Westpac MasterCard contract.
It was not credible that he had not been aware of the MasterCard terms and
conditions, given that he had operated the card since November 2004.
[13] The claim was not withdrawn and the strike-out application by Collection House was filed on 6 April 2010. The strike-out application was allocated a hearing date of 26 May 2010. On 5 May 2010, Mr Munro served a Demand Letter on Collection House seeking payment of money regarding the harassment claim. On that day, Mr Mitchell wrote to Mr Munro informing him that it considered the demand for money to amount to an abuse of process and sought confirmation that the Demand had been withdrawn. On 24 May 2010, Mr Munro unilaterally discontinued the proceedings and the Court fixture was vacated.
[14] On that same day, however, the proceedings which have now reached this
Court were filed by Mr Munro, being what the District Court Judge described as
―virtually a replication of the first proceedings except that Mr Munro sought harassment orders against Collection House, Mr Mitchell, and Mr Mallard.‖ There was no contact between Mr Munro and Collection House, Mr Mallard or Mr Mitchell between the discontinuance of the first proceeding and the time of the District Court judgment, except in relation to the service of proceedings.
District Court Judgment
[15] In a judgment dated 30 November 2010, the District Court Judge traced the events and the history of the proceedings and then recorded the principal submissions made on behalf of the present respondents and by Mr Munro. She held that the proceedings filed by Mr Munro should be treated as an application for restraining orders under the Harassment Act 1997, although the Act was not specifically referred to in the papers.
[16] The relevant provisions of the Harassment Act are as follows:
3 Meaning of “harassment”
(1) For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
(2) To avoid any doubt,—
(a) The specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:
(b) The specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.
...
4 Meaning of “specified act”
(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a) Watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:
(b) Following, stopping, or accosting that person:
(c) Entering, or interfering with, property in that person's possession: (d) Making contact with that person (whether by telephone,
correspondence, or in any other way):
(e) Giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:
(f) Acting in any other way—
(i) That causes that person (―person A‖) to fear for his or her
safety; and
(ii) That would cause a reasonable person in person A's particular circumstances to fear for his or her safety.
(2) To avoid any doubt, subsection (1)(f) includes the situation where—
(a) A person acts in a particular way; and
(b) The act is done in relation to a person (―person B‖) in circumstances in which the act is to be regarded, in accordance with section 5(b), as done to another person (―person A‖); and
(c) Acting in that way—
(i) Causes person A to fear for his or her safety; and
(ii) Would cause a reasonable person in person A's particular circumstances to fear for his or her safety,—
whether or not acting in that way causes or is likely to cause person B to fear for person B's safety.
(3) Subsection (2) does not limit the generality of subsection (1)(f).
...
6 Object
(1) The object of this Act is to provide greater protection to victims of harassment by—
(a) Recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and
(b) Ensuring that there is adequate legal protection for all victims of harassment.
(2) This Act aims to achieve its object by—
(a) Making the most serious types of harassment criminal offences:
(b) Empowering the Court to make orders to protect victims of harassment who are not covered by domestic violence legislation:
(c) Providing effective sanctions for breaches of the criminal and civil law relating to harassment.
(3) Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).
...
9 Application for restraining order
(1) Subject to subsection (4), any person who is being or has been harassed by another person may apply to the Court for a restraining order in respect of that other person.
(2) If the person who is eligible to apply for a restraining order is a minor under
16 years of age, the application must be made by a representative in accordance with section 11(2).
(3) If the person who is eligible to apply for a restraining order is unable or unwilling, in the circumstances specified in section 13(1)(b), to make the application personally, a representative appointed in accordance with section 13 may make an application on that person's behalf.
(4) A person who is or has been in a domestic relationship with another person may not apply under this Act for a restraining order in respect of that other person.
(5) For the purposes of subsection (4), domestic relationship has the same meaning as it has in the Domestic Violence Act 1995.
...
16 Power to make restraining order
(1) Subject to section 17, the Court may make a restraining order if it is satisfied that—
(a) The respondent has harassed, or is harassing, the applicant; and
(b) The following requirements are met:
(i) The behaviour in respect of which the application is made causes the applicant distress, or threatens to cause the applicant distress; and
(ii) That behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and
(iii) In all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c) The making of an order is necessary to protect the applicant from further harassment.
Subsection Note
(2) For the purposes of subsection (1)(a), a respondent who encourages another person to do a specified act to the applicant is regarded as having done that specified act personally.
(3) To avoid any doubt, an order may be made under subsection (1) where the need for protection arises from the risk of the respondent doing, or encouraging another person to do, a specified act of a different type from the specified act found to have occurred for the purposes of paragraph (a) of that subsection.
...
17 Defence to prove that specified acts done for lawful purpose
A specified act cannot be relied on to establish harassment for the purposes of section 16(1)(a) if the respondent proves that the specified act was done for a lawful purpose.
[17] The Judge noted that the present respondents accepted that there had been both correspondence and telephone calls made to Mr Munro, ―specified acts‖ as defined in s 4(1)(d), but that some of the contact resulted from requests for information by Mr Munro. The Judge accepted that Mr Mallard, as an employee of Collection House, had been responsible for sending the first two letters requiring payment of the credit card account, and that these demand letters were standard procedure in the role of a debt collection agency. Mr Mallard was also responsible for sending a follow-up letter of demand in January 2010. The Judge also accepted that the actions taken by Mr Mallard and others were attempts to communicate with Mr Munro in respect of the alleged outstanding debt owed by him to Westpac, and were intended to avoid the necessity of filing court proceedings. The Judge found that Mr Mitchell had written two letters and an email to Mr Munro, the first responding to the initial restraining order application against Collection House, and the second letter and email being also related to the first proceedings which Mr Munro subsequently withdrew.
[18] The Judge accepted that there had been five attempts to engage Mr Munro by telephone between November 2009 and February 2010, only one of which led to a telephone discussion, and noted that there had been no attempts to contact Mr Munro since the filing of the proceedings.
[19] The last contact by any of the respondents was on 18 May 2010, when Mr Munro emailed Mr Mitchell proposing terms on which he may consider settling, and Mr Mitchell replied by return email that he would seek instructions.
[20] In response to the submission on behalf of Collection House that a restraining order could not be made against a company, the Judge referred to ss 4 and 29 of the Interpretation Act 1999, defining ―person‖ in any New Zealand legislation as including ―a corporation sole, a body corporate, and an incorporated body.‖ She also
referred to Ferguson v British Gas Trading Ltd,1 which was an appeal to the English
Court of Appeal against a decision not to strike out a claim under the Protection of Harassment Act 1997. On the basis of that authority, the Interpretation Act 1999, and the liability of a company convicted under the Harassment Act to a fine in lieu of imprisonment, the Judge was not prepared, at an interlocutory stage of the proceedings, to determine whether the term ―person‖ in the Harassment Act could encompass a corporation. She adopted the test from Porter v NZ Guardian Trust Co.
Ltd that: 2
[i]f the relevant law has not been settled at the highest level or if the case presents a novel point of law the proceedings should be allowed to go to trial unless the court is satisfied that the proposition of law advanced by the plaintiffs is completely unarguable.
[21] On the grounds that it was arguable that Collection House was susceptible to the granting of remedies under the Harassment Act, the Judge declined to strike out the proceedings on that ground.
[22] The Judge said that communications by way of letter, telephone or any other form can constitute harassment under ss 3 and 4 of the Act. She then turned to the requirement, for the making of a restraining order, of the presence of the conditions in s 16(1)(b). As she put it, there must be behaviour causing or threatening to cause distress to the applicant, which would also cause distress to a reasonable person in the applicant’s circumstances. She noted that the degree of distress must justify the
order and be necessary to protect the applicant from further harassment.3
1 Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46; [2009] All ER (D) 80.
2 Porter v NZ Guardian Trust Co. Ltd (1996) 7 TCLR 323; (1996) 7 NZCLC 261, 202.
3 Section 16(1)(c).
[23] The District Court Judge focused on the elements of distress, noting that the first question under s 16(1)(b)(i), of whether distress has been caused, was subjective; and that the Court must also consider under s 16(1)(b)(ii), objectively, whether the behaviour in respect of which the application is made ―would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances‖. She rightly observed that the focus would be on the communications by Mr Mallard and Mr Mitchell on behalf of Collection House.
[24] Reviewing the evidence, the Judge concluded that there was no basis upon which it could be held that there were excessive attempts to contact Mr Munro, given the importance of attempting to resolve matters relating to the debt without the need to issue proceedings and incur additional cost. She held that there was no evidence that any of the correspondence was anything other than standard form correspondence in respect of a debt collection. The Judge accepted that if there had been failure to communicate with Mr Munro in respect to the matter in a proper, professional manner by a collection agency, this of itself could be seen to be unacceptable behaviour.
[25] She then said:
[94] It is clear from the evidence that Mr Munro’s distress relates to the alleged credit card debt he owes Westpac and the difficulty he is likely to face in repaying it. Although he stated that this matter is not about the debt but about restraining orders, the matters of concern to him are directly attributable to the matters between himself and Westpac, i.e. the alleged debt. I am not satisfied that the behaviour of Collection House in seeking to recover the debt on behalf of Westpac has itself been the cause of distress. Rather, the behaviour of the applicants in communicating with Mr Munro has been entirely reasonable and professional and cannot, of itself, be said to have caused or threatened to cause the necessary degree of distress.
[26] The Judge went on to consider the provisions of s 17 which provide a complete defence to allegations of harassment under s 16(1)(a), if a respondent proves that a specified act was done for a lawful purpose.
[27] It does not appear to have been disputed in the District Court that the purpose for the communications by letter and telephone which were the subject of the application were attempts to persuade Mr Munro to pay or otherwise settle his debt
to Westpac. The Judge held that the three respondents ―would have a defence to any
finding of harassment under s 17.‖
Discussion
[28] In my view, the Judge fell into error in going as far as she did in making the findings of fact quoted above at [25]. She had properly cited r 2.50.1 of the District Court Rules, and had further referred to the reliance by the respondent on r 2.50.3. The latter rule provides that a court may stay or dismiss proceedings if it considers that no reasonable cause of action is disclosed, that the proceeding is frivolous or vexatious, or that the proceeding is an abuse of process. It appears, however, that the Judge momentarily overlooked the limitation that her function, on the hearing of the strike-out application, was not to make findings of fact, but to assume that the allegations made by the plaintiff could be proved on a substantive hearing; and to consider whether, in that event, the pleading disclosed a reasonable cause of action
or case appropriate to the nature of the pleading.4
[29] I consider Mr Munro to be justified in arguing that it was not open to the Judge, in the strike-out proceedings, to determine that it was clear from the evidence that Mr Munro’s distress related to the alleged credit card debt he owed and the difficulty he is likely to face in repaying it, rather than being related to the behaviour of the respondents. Although affidavits had been filed, no witnesses were heard and there was no cross-examination. Mr Munro complained before me that, had the Judge permitted the case to go to trial, he would have called other evidence related to his distress, including evidence that he was upset by the fact that representatives of the bank or Collection House had approached a neighbour to make inquiries about his whereabouts.
[30] In applying the proper principles for strike-out, the Judge was required to analyse the statutory criteria for the granting of a restraining order and to determine whether, on the basis of an assumption that Mr Munro could prove his allegations as
pleaded, there was an arguable case to go to trial.
4 Attorney-General v Prince [1998] 1 NZLR 262, 267.
[31] Under s 9(1) of the Harassment Act, a person who is not, and has not been, in a domestic relationship with another person, who is being or has been harassed by that other person, may apply to a District Court for a restraining order.
[32] The exercise of the Court’s power to make a restraining order is governed by
the provisions of ss 16 and 17 of the Act. They require the Court to make a five- stage inquiry:
First, to determine whether the respondent has harassed, or is
harassing, the applicant;5
Second, to find whether the behaviour in respect of which the application is made causes the applicant distress, or threatens to do
so;6
Third, to make the mixed objective/subjective assessment of whether that behaviour would cause, or threaten to cause, distress to a
reasonable person in the applicant’s particular circumstances;7
Fourth, to decide whether, in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of
an order;8 and
Fifth, to decide whether the making of an order is necessary to protect
the applicant from further harassment.9
[33] Under the Act, the Court is required to adopt the meaning of ―harassment‖
found in s 3(1), which provides that:
a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of
5 Sections 16(1)(a) and 17.
6 Section 16(1)(b)(i).
7 Section 16(1)(b)(ii).
8 Section 16(1)(b)(iii).9 Section 16(1)(c).
behaviour that includes doing any specified act to the other person on at least
2 separate occasions within a period of 12 months.
[34] The interpretation and application of that definition is coloured, first, by the expression ―pattern of behaviour‖, which implies ―a regular and intelligible form or sequence discernible in certain actions or situations; especially one on which the prediction of successive or future events may be based.‖10 It is coloured also by the object of the Act, which is to provide ―greater protection to victims of harassment‖,11 and by the ordinary meaning of ―harassment‖: ―to trouble or vex by repeated attacks‖.12 So, for example, merely stopping,13 or making contact with,14 a person twice within a period of 12 months would not usually be sufficient to constitute harassment which satisfies the first criterion under s 16(1) for the making of a
restraining order.
[35] Although it may have been arguable in this case that the correspondence and telephone calls did not amount to ―a pattern of behaviour directed against‖ Mr Munro, especially by Mr Mitchell, that point was not taken by the respondents. The communications by letter and telephone having been admitted by the respondents, the District Court Judge appears to have assumed that, at a hearing, Mr Munro would be able to establish that he had been harassed in terms of s 16(1)(a), at the first stage of the inquiry.
[36] However, s 17 is also relevant at this first stage. Section 16(1) is specifically made subject to s 17 which provides that, if the specified act upon which the applicant seeks to rely was done for a lawful purpose, the act cannot amount to harassment for the purposes of s 16(1)(a). The application for a restraining order would fail on that basis, whatever distress had been caused.
[37] Mr Munro submitted on appeal that the alleged debt was unenforceable under s 99 of the Credit Contract and Consumer Finance Act 2003, so that any attempt to
collect such a debt would not have a lawful purpose. That submission, however,
10 Oxford English Dictionary
11 Section 6(1)
12 Oxford English Dictionary
13 Section 4(1)(b)14 Section 4(1)(d)
fails to recognise that any complaint about the enforceability of the debt is one to be made in enforcement proceedings taken by the bank. Such a complaint does not affect the lawfulness of purpose of the collection agent and its employee and solicitor in seeking to persuade him to respond to the bank’s demands for payment or settlement.
[38] In my view, the Judge was right to conclude that the respondents’ defence based on s 17 was bound to succeed, and to strike out the application on that basis. Having regard to the scheme of the Act, once lawful purpose was established, as inevitably it would be in this case, the Court would not need to embark upon the second to fifth stages of the inquiry. Whether any distress was suffered by the applicant as a result of the behaviour complained of and, if so, to what degree, become irrelevant. For the purposes of this appeal, therefore, it does not matter that the Judge may have gone too far in making factual findings on the distress issue.
[39] Further, it was conceded by Mr Munro that a restraining order was not necessary to provide him with protection. Mr Munro claimed that, by issuing the proceedings under the Harassment Act, he had been able to achieve the desired outcome of having the respondents acknowledge that there would be no further letters of demand being issued regarding the debt by Collection House, Mr Mallard or Mr Mitchell, nor any contact made. What was described by Mr Munro as the
―undertaking‖ in this regard was recorded by the Judge at [39] of her judgment. However, Her Honour noted that the statement by counsel for the respondents that there would be no more contact was a result of Westpac having filed separate proceedings in the North Shore Court in respect to the debt; proceedings which were being defended by Mr Munro. Counsel had acknowledged that such proceedings were the appropriate place to address the matters which Mr Munro raised relating to the Westpac credit card debt and that, accordingly, there would be no need for the debt collection agency to take any further steps.
[40] Inevitably, therefore, and irrespective of any findings about what had occurred in the past, the claim for a restraining order would be refused because it would fail the test under s 16(1)(c) of being necessary to protect Mr Munro from further harassment.
[41] Mr Munro also appealed against the District Court Judge’s award of costs in favour of the respondents on a 2B basis, his principal ground being the point just discussed about his having achieved the desired outcome, by issuing the proceedings, of having the respondents acknowledge that there would be no further letters of demand, nor any contact made. As I have said, however, it was the issuing of the Westpac proceedings which brought about that result, not Mr Munro’s application.
[42] Mr Munro further submitted that the principal ground for striking-out which had been argued by the respondents was that an order could not be made against Collection House Limited because it was a limited liability company. He said that, having won that argument, which accounted for a significant amount of the costs involved, costs should have been awarded in his favour.
[43] In response, Mr Robinson submitted that the argument about Collection House’s susceptibility to a restraining order under the Harassment Act did not add significantly to the proceedings, given that the strike-out application was based also on the ground that it was not arguable that the degree of distress caused could justify the making of an order, and also on the ―lawful purpose‖ defence under s 17, in respect of all three respondents.
[44] Bearing in mind the two important considerations under the District Court Rules 2009 that costs are at the discretion of the court,15 and that a party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds,16 I am not prepared to interfere with the exercise of the Judge’s discretion to make the costs order.
[45] For these reasons, the appeal is dismissed.
15 Rule 4.1.1(a).
16 Rule 4.2(a).
[46] I reserve costs on the appeal.
[47] I have held that Mr Munro was rightly concerned about the Judge having gone too far in making findings of fact about the cause of his distress. Having had the benefit of hearing submissions from him in person, I consider him to have acted properly and reasonably in bringing the appeal, notwithstanding that it has failed. Mr Munro conducted the appeal in a measured and responsible manner, and articulated his points clearly, for the benefit of both the Court and counsel for the respondents. In both the District Court and this Court, Mr Munro’s arguments have succeeded in part.
[48] Taking all of the circumstances into account, including the fact that Mr Munro will have to pay the costs of the District Court proceedings, I am inclined to let the costs on appeal lie where they fall. Nevertheless, I acknowledge that I have not heard from the parties on costs. The principle that costs follow the event applies also in these proceedings and the respondents are entitled to apply.
[49] I invite Mr Robinson to confer with Mr Munro. If the respondents wish to seek costs, they should file and serve a memorandum within 20 working days of this judgment. Mr Munro will then have 15 working days in which to file and serve a memorandum in reply.
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Toogood J
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