Ole Limited v Benge
[2024] NZHC 654
•22 March 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-166
[2024] NZHC 654
UNDER Sections 280 and 285 of the Sale and Supply of Alcohol Act 2012 IN THE MATTER OF
An appeal against a decision of the Alcohol Regulatory and Licensing Authority
BETWEEN
OLE LIMITED
First Appellant
VIOLETA CALZADILLA
Second Appellant
AND
SHANE DOUGLAS BENGE
Respondent
Hearing: On the papers Counsel:
T G H Smith for the Appellants
S J Leslie and J A Corbett for the Respondent
Judgment:
22 March 2024
JUDGMENT OF GRICE J
(Costs)
[1] This is an application for costs by the respondent following the dismissal of an appeal. The appellants oppose costs being awarded at the amount sought saying that the amount of costs should be reduced due to the respondent’s application to adduce further evidence which extended the hearing time from a half day to a full day.
OLE LIMITED v BENGE (Costs) [2024] NZHC 654 [22 March 2024]
[2] On the 19 February 2024, I dismissed an appeal against the decision1 of the Alcohol Regulatory Licensing Authority (the Authority) to cancel the on-licence of the first appellant, Olé Limited (Olé), and the manager’s certificate of the second appellant, Ms Violeta Calzadilla, on the basis of alleged lack of “suitability” to hold that licence and certificate under ss 280(3)(b) and 285(3)(b) of the Sale and Supply of Alcohol Act 2012 (the Act) respectively.
[3] I found that the primary ground of appeal was not made out. That ground was that the Authority did not give appropriate weight to the appellant’s factual circumstances.2
[4] The respondent was granted leave to file further evidence on appeal. The evidence related to events arising after the Authority’s decision. That evidence was adduced by affidavit and three of the deponents were cross-examined. Ms Calzadilla filed an affidavit in response and was cross-examined. As a result of the further evidence the appeal took one day to hear rather than the originally scheduled half day. I admitted the evidence but found that the new evidence did not add any weight to the respondent’s case for cancellation of the licence or certificate.3
[5] The respondent as the successful party in the appeal seeks costs on a Category 2 band B basis totalling $19,120.00 together with disbursements of $229.90. The appellant takes no issues with the calculations nor the steps taken. The category and bands are set out in the High Court Rules 2016 (the Rules). Category 2 is for proceedings of average complexity requiring counsel of skill and experience considered average in the High Court. Band B is applied when a normal amount of time is required for the particular step. Costs in each step in the appeal are then calculated applying that band to the time allocated for each step. No issue is taken with 2B being the appropriate allocation in this case in general terms.
[6] The appellants however submit that the costs should be reduced because of the extra time and work involved for the parties because of the application to adduce
1 Benge v Ole Ltd [2023] NZARLA 20-21 [The Authority decision].
2 Ole Ltd v Benge [2024] NZHC 284 at [91].
3 At [85].
further evidence and the extra half day allocated to enable that application to be dealt with. They pointed to the comments of the authors The Law of Costs in New Zealand:4
A blanket approach to time bands is neither desirable nor permissible under the rules.1 Rather, the appropriate time allocation for each step in the proceeding must be separately considered after the step has been taken. An outcome that reflects a blanket approach, such as an award of costs ‘on a 2B basis’, would only be permissible where it is in fact the case that a normal amount of time was required for each step that was taken in the proceeding.
[7] They say that the blanket approach to a costs award is not desirable here because of the “belated and extensive evidence,” which the appeal judgment noted, at [85], added no weight to the respondent’s case. The appellants argue this would have been a very minor appeal and the majority of the day’s appearance and much of the written submissions and preparation time was devoted to the application to adduce the further evidence.
[8] In the circumstances, the appellants say that steps 56 and 57 as listed in the Schedule should be considered on a Band A basis which allocates a smaller amount of time for the relevant steps and is usually applied to proceedings of a straight forward nature to be conducted by counsel considered junior in the High Court. The respondent’s claim for steps 56 and 57 respectively were:
(a)Preparation of written submissions 05/02/2024 $7,170
(b)Appearance at hearing for principal counsel 07/02/2024 $2,390
[9] The appellants say costs should not be granted in respect of the application to admit that evidence. The appellants also submit that the costs of Ms Leslie’s appearance, as well as the costs of preparation of submissions, should be reduced by half to reflect the extent of the focus on the evidence issues.
[10] The appellants refer to r 14.7(f)(ii) of the Rules which provides that a court may reduce the costs otherwise payable if the party claiming costs has contributed unnecessarily to the time or expense of the proceeding or step in it by taking or
4 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington 2022) at [2.14].
pursuing an unnecessary step or an argument that lacks merit. The appellants says applying that approach, the costs would be $10,516 – plus disbursements (apart from the filing fee for the unnecessary application), a total of $10,671.99.
[11] The aim of the costs regime in the Rules is to achieve predictability, consistency and expediency in determining costs. Once the skill and time classification has been determined that discretion is generally to be exercised in accordance with rr 14.2 - 14.10 of the Rules.5
[12] The general principles applying to the determination of costs contained in r 14.2(1) are:
(a)The party who fails with respect to a proceeding or an interlocutory application should pay costs to the successful party
(b)An award of costs should reflect the complexity and significance of the proceeding.
(c)Costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.
(d)What is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs.
(f)An award of costs should not exceed the costs incurred by the party claiming costs.
(g)So far as possible the determination of costs should be predictable and expeditious.
5 Glaister v Amalgamated Dairies Limited [2004] 2 NZLR 606 at [19].
[13] The respondent had sought an adjournment at the time it made the application to adduce new evidence due to the unavailability of a witness for cross-examination. That application was dismissed but further time was allocated for the hearing – extending it from a half day to a full day and the matter ran beyond 5 pm despite taking no afternoon adjournment. The extra time was needed due the fact that cross-examination on the new evidence was required. Nevertheless that application to adduce new evidence was successful.
[14] However, counsel for the respondent noted that the conduct of the appeal by the appellants’ and their defaults also added to the time and cost of the parties. For instance the appeal was filed out of time, security was not paid in time, and the self represented appellants briefed counsel part way through, and the appellants amended their grounds of appeal twice after instructing counsel (although only one amended version was filed in the Court). The respondent says it did not seek a cost contribution for that extra work despite that further work was required and that it had to follow up on correspondence ignored by the then self-represented appellants. The respondent also noted that new counsel had to be briefed on the appeal, because the advocate it used before the Authority could not appear in this Court. Yet the respondent did not seek to recover for that.
[15] I do not consider this a case for departing from a 2B costs award for all steps. This is not a case where the respondent was not successful in either the appeal itself or the adducing of further evidence. The party claiming costs did not contribute unnecessarily to the time or expense of the proceeding or a step in it by taking or pursuing an unnecessary step or an argument that lacked merit. The application to adduce further evidence in this case did not lack merit. There is no criticism of the manner in which the application was pursued just the fact it was made at all.
[16] While in some cases the conduct of the successful party or its level of success may justify an adjustment of costs, but this case does not call for the reduction of fee. The costs application must be looked at in the round. I do not consider the respondent’s claim should be reduced because of the successful application to adduce further evidence, despite it not supporting a further ground of appeal, particularly
when there were matters that were the fault of the appellants which added to the cost but for which the respondent made no extra claims.
[17] This is not an appropriate case to make adjustments to what has otherwise been agreed as the appropriate time and step allocation – 2B. The need for predictability and certainty as well as the principle that the successful party usually would be entitled to costs are the overriding factors in this case.
[18]Accordingly, I award costs on a 2B basis as sought in favour of the respondent.
Grice J
Solicitors:
Luke Cunningham & Clere, Wellington
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