Patel v Real Estate Agents Authority

[2023] NZHC 2616

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-404-2124

[2023] NZHC 2616

IN THE MATTER

of an appeal against the Real Estate Disciplinary Tribunal

BETWEEN

PRAKASH PATEL

Appellant

AND

REAL ESTATE AGENTS AUTHORITY

First Respondent

MARK PHILLIPS

Second Respondent

Hearing:

On the papers

Counsel:

Appellant in person

M J Mortimer-Wang and J R Ah Koy for First Respondent D G Dewar for Second Respondent

Judgment:

19 September 2023

JUDGMENT OF CHURCHMAN J (COSTS)

Introduction

[1]    On 3 August 2023, I issued my decision in these proceedings in respect of three interlocutory applications.1 I dismissed the appellant’s applications to adduce further evidence on appeal and to stay the enforcement of the costs order made in the Tribunal’s costs decision pending determination of the substantive appeal. I allowed the second respondent’s application to strike out the appeal, and struck the proceeding

1      Patel v Real Estate Agents Authority [2023] NZHC 2047.

PATEL v REAL ESTATE AGENTS AUTHORITY [2023] NZHC 2616 [19 September 2023]

out. I was satisfied there were no reasonably arguable grounds of appeal and the appeal was an abuse of process.2

[2]    I encouraged the parties to agree on costs between themselves, failing which they were to file memoranda as to costs, which I would then deal with on the papers.3 The appellant and second respondent have not reached agreement as to costs.

[3]    The first respondent abided the Court’s decision on the interlocutory applications. Neither the appellant nor the second respondent seeks costs against the first respondent. The first respondent does not seek costs and has made no submissions as to costs. The determination of costs in this matter is therefore only in respect of the appellant and second respondent.

Lateness of submissions as to costs

[4]    In my decision, I directed that any applications for costs were to be filed within 14 days, with the appellant’s response to be filed and served within a further 14 days.4 The second respondent’s memorandum as to costs is signed and dated 17 August 2023, that is, within the 14 days allowed. The second respondent has advised the Court that it served its costs memorandum on the appellant at this time but for some reason overlooked filing it with the Court.

[5]    The appellant however denies he was ever served with the second respondent’s memorandum. The appellant submits the second respondent has therefore not abided by the judgment and its memorandum should therefore not now be accepted, as this prejudices the appellant’s position, particularly given that the time to appeal the decision has also lapsed. He says counsel for the second respondent have not respected my judgment and, given the absence of any application for costs for a “very long time”, he has requested a refund of his costs payment deposited with the court.

2 At [92].

3 At [106].

4 At [106].

[6]    The second respondent’s costs memorandum is signed and dated 17 August 2023. Other than what the parties have informed the Court, there is no evidence that the second respondent served its memorandum on the appellant, but also no evidence that it did not. It is not possible to determine conclusively at this stage whether or not service occurred. However, a hearing to determine the issue is neither appropriate nor necessary. Even accepting what the appellant says as to not having been served, the appellant has failed to demonstrate how his position has been consequently prejudiced, in particularly because the time period allowed for an appeal is a matter which is entirely independent from the determination of costs. I am satisfied it is appropriate to accept the second respondent’s memorandum for costs for filing and to now determine the matter of costs. The appellant’s request for a refund of his payment into court on account of costs is declined.

Discussion

[7]    Costs are at the discretion of the Court.5 The overall objective is to achieve the outcome that best meets the interests of justice. Costs will typically be awarded to the successful party.6 The second respondent is entitled to costs, as the successful party in this case.

[8]    Having found that the second respondent is entitled to costs, and having directed that I will accept its submissions as to costs, the question becomes the quantum the second respondent should receive.

[9]    The second respondent advises that it would have sought costs on an indemnity basis but for the fact that actual costs as between solicitor and client are less than the 2B calculation in this case. The total calculation of costs and disbursements on a 2B basis totals $16,324. The actual costs as between solicitor and client total $14,769.90. Counsel therefore asks the Court to order the appellant to pay the second respondent costs of $14,769.90, plus disbursements of $550.

5      High Court Rules 2016, r 14.1(1).

6      Rule 14.2(1)(a).

[10]   I consider this is an appropriate outcome. A 2B categorisation denotes a proceeding of average complexity requiring counsel of skill and experience considered average in the High Court, and allowing an amount of time normally considered reasonable for each step. This does not seem out of place in this case. Counsel seeks only its actual costs and disbursements, which are lower than those calculated on a 2B basis. There is no reason the second respondent should not receive its full costs in successfully defending the proceedings and striking out the appellant’s claim. I found there was no merit to any of the grounds of the appellant’s appeal and the proceeding was an abuse of process. It is appropriate the second respondent be reimbursed in full for its costs.

[11]   The appellant (pre-emptively, on his account) objected to costs being awarded against him. However, almost the entirety of the appellant’s memorandum objecting to costs is devoted to attempting to relitigate and challenge my decision on the interlocutory applications on a number of points. Needless to say, the determination of costs is not an appropriate forum to challenge my findings and conclusions in that decision.

[12]   In the part of its memorandum in respect of costs on my decision, the appellant submits the second respondent “has already enjoyed and benefitted from special preferential treatment” and that “any further cost order in his favour would just mean enriching the [second respondent] from this process of which I was a victim due to things that were beyond my control.” It is worth briefly noting the background to these  proceedings.  The  appellant  had  brought   a   complaint   against   the   second respondent, which was dismissed by the Complaints Assessment Committee. The Real Estate Agents Disciplinary Tribunal dismissed the appellant’s appeal against that decision. I then struck out the appellant’s appeal from the decision of the Tribunal, finding there were no reasonably arguable grounds of appeal. Multiple bodies, therefore, have all found against the appellant, at every stage in the process. Despite this, it is clear from the appellant’s memorandum that he continues to reject the findings and decisions of the Committee, of the Tribunal, and of this Court. I found, as the Tribunal had already, the second respondent to have acted entirely blamelessly.7

7      See at [77], [81] and [84] of my decision, above n 1.

I concluded in my decision that there was “an element of vexatiousness in the appellant bringing this appeal”.8

[13]   It is thus entirely misguided to suggest that the second respondent has benefited from “special preferential treatment”. Rather, the second respondent has had to continue to face baseless allegations of misconduct from the appellant for over five years now. Indeed, the appellant submits in his costs memorandum that the second respondent is attempting to make a profit out of this by exploiting his position. This could not be further from the truth.

[14]   The appellant raises no good reason why costs should not be awarded against him in full. In seeking (only) its actual costs, the second respondent effectively applies for indemnity costs in this proceeding, although in the unusual situation where indemnity costs are lower than those on a 2B scale. I consider the appellant has acted improperly and unnecessarily in commencing and continuing these proceedings against the second respondent,9 and total indemnity costs are not unduly high in this case.10 I therefore order indemnity costs against the appellant in favour of the second respondent under r 14.6(1)(b), which, fortunately for the appellant, in this case happens to be less than costs on a 2B basis in any case.

Repayment of security for costs

[15]   The second respondent lodged $6,000 with the Court as security for costs on its application. Having succeeded in its application, it is now entitled to be repaid that amount.

Orders

[16]   The appellant is to pay to the second respondent its costs of $14,769.90, plus disbursements of $550.

8 At [91].

9      High Court Rules, r 14.6(4)(a).

10     Rule 14.6(4)(f).

[17]   The Registrar is directed to pay the sum of $6,000 lodged with the Court as security for costs to the second respondent’s solicitors.

Churchman J

Solicitors:

Meredith Connell, Auckland for First Respondent

Thomas Dewar Sziranyi Letts, Lower Hutt for Second Respondent