PANMURE TAMAKI MANATOPU INCORPORATED AND MOUNT WELLINGTON LICENSING TRUST

[2024] NZHC 3276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2367

[2024] NZHC 3276

UNDER

the High Court Rules 2016

IN THE MATTER OF

an application for an interim injunction

BETWEEN

PANMURE TAMAKI MANATOPU INCORPORATED

Applicant

AND

MOUNT WELLINGTON LICENSING TRUST

Respondent

Hearing:	On the papers
Counsel:	B McDonald for Applicant A J Steel for Respondent
Judgment:	6 November 2024

JUDGMENT OF O’GORMAN J

[as to costs]

This judgment was delivered by me on 6 November 2024 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

A J Steel, Auckland

Kemps Weir, Auckland

Copy to:

Brian McDonald

PANMURE TAMAKI MANATOPU INCORPORATED v MOUNT WELLINGTON LICENSING TRUST [2024] NZHC 3276 [6 November 2024]

[1]                 This proceeding was commenced by Mr McDonald purporting to act on behalf of Panmure Tamaki Manatopu Inc.

[2]                 The named respondent, Mt Wellington Licensing Trust, filed and served a notice of opposition and memorandum of counsel taking the position that the application was procedurally defective and irregular. In particular, Mr McDonald cannot commence the proceedings on behalf of a Body Corporate, given that he is not a lawyer. Also, leave was not sought or obtained to commence the proceeding by way of originating application, nor is that process suitable.

[3]                 In an email dated 21 October 2024, Mr McDonald seemed to acknowledge these concerns and withdrew the proceeding.   In a minute dated 22  October 2024,   I treated that as a discontinuance and set a deadline for the respondent to file and serve a memorandum if there were any cost issues that might require determination. Both parties have filed documents.

[4]                 Mr McDonald sent to the Court a lengthy email on 23 October 2024 providing further information about the substantive disputes between the parties, the grievances held by those whom he represents, his frustration at not having a voice through   High Court  action,  and  his  complaints  that   justice   has   not   been   achieved. He concluded his email with the following:

17.   We ask the Court to please note who we are left in our Legislatively imposed silence, for costs to this point to lie where they fall.

18.   I ask the Court to understand what we say is the truth of this matter which we have been unable to express verbally. We have proof our Trustees misled us and need The Court’s help to allow us as a community to have a voice by considering to reinstate our claim and agree with the Trust on a method to be represented. This is what we could have said today, given time and patience to have been allowed to speak.

[5]                 He subsequently filed a document headed “Memorandum”, with a summary of legal arguments for an injunction and lengthy appendices setting out timelines, tables, financial analysis and other evidential material.

[6]                 In summary, in terms of costs, Mr McDonald’s position recorded in para 17 of his email dated 23 October 2024 is that costs should lie where they fall.

[7]                 The respondent has filed and served  a  memorandum  seeking  costs  on  a 2B basis plus disbursements, as calculated in a schedule:

Costs:

No	Step	Time Allocation (Band B)	Amount (at $2,390 (Category 2))
38	Filing notice of opposition and supporting affidavit	2	4,780
11	Filing memorandum for first call	0.4	956
29	Sealing order as to costs	0.2	478
$6,214

Disbursements:

Date	Supplier – Description	Amount (including GST)1
14 October 2024	Ministry of Justice – filing fee for notice of opposition	143.00
26 July 2024	Process Server – serve notice of opposition at applicant’s nominated physical address	172.50
Ministry of Justice – sealing order fee for costs order (to be incurred)	60.00
$375.50

[8]                 The respondent relies on the ordinary presumption in r 15.23 of the High Court Rules 2016 that a party who discontinues a proceeding must pay costs, and the mix of evidence and submissions contained in Mr McDonald’s emails are not relevant. In respect of those documents, the respondent says:

(a)the proceeding was not withdrawn until after the respondent was required to prepare a notice of opposition, affidavit and memorandum of counsel;

(b)the issue of representation was squarely raised in the notice of opposition;

(c)the only remaining matter is one of costs, so the substantive disputed issues are no longer relevant and there is no proceeding on foot seeking an injunction; and

1      The respondent is not GST-registered.

(d)for the avoidance of doubt, the respondent denies any allegations of wrongdoing.

Legal principles

[9]                 Rule 15.23 provides that, unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of an incidental to the proceeding, up to and including the discontinuance.2

[10]              Exceptions are based on an assessment of who was the successful party.3 When the Court is asked to exercise its discretion to order costs on a withdrawal or discontinuance, the Court does not normally consider the merits of the respective cases, unless they are so obvious that they should influence the costs outcome.4

[11]Rule 14.2 provides the principles for calculating the amount.

(a)Under r 14.2(1)(b), an award of costs should reflect the complexity and significance of the proceeding. For those purposes, r 14.3 provides for three categories of proceeding. Category 2 applies to proceedings of average complexity requiring counsel of skill and experience considered average in the High Court. Rule 14.4 provides that the appropriate daily recovery rates are specified in sch 2: $2,390 for Category 2 proceedings.

(b)Rule 14.2(1)(c) provides that costs should generally 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. For those purposes, r 14.5 specifies that a reasonable time is set out in sch 3 for each step, or a reasonable time should be determined by analogy. This is done by

2      See Ip v Ip [2016] NZHC 528 at [16] and [19].

3      Obrecht v Earthquake Commission [2015] NZHC 555 at [25].

4      Peterberic v Eady [2020] NZHC 2079 at [8].

reference to whether the step falls within band A, B or C. Band B applies if a normal amount of time is considered reasonable.

(c)Rule 14.2(1)(f) provides that an award of costs should not exceed the actual costs incurred by the party.

Application

[12]              I accept that the strong presumption that the respondent is entitled to costs applies and there are no proper grounds for ordering that costs simply lie where they fall. Nor is it appropriate in the circumstances to consider the merits of the underlying allegations, especially because the proceeding did not progress to any substantive steps.

[13]              However, in terms of quantifying the appropriate amount on a 2B basis, the notice of opposition and supporting affidavit were relatively short and focused on the procedural defects rather than the substantive claims. I consider that an allocation of two days for that step is excessive and an allocation of one day is more appropriate in the circumstances.

[14]Accordingly, I award the respondent costs of $3,824 and disbursements of

$375.50.

O’Gorman J