Police v Prescott - [2020] NZHC 1727

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1097

[2020] NZHC 1727

UNDER the Insolvency Act 2006

IN THE MATTER OF

The bankruptcy of PETER RICHARD PRESCOTT

BETWEEN

NEW ZEALAND POLICE
Judgment Creditor

AND

PETER RICHARD PRESCOTT

Judgment Debtor

Hearing: 9 July 2020

Appearances:

W Fotherby and Alexandra Tumahai for the Judgment Creditor Peter Richard Prescott in person

Judgment:

9 July 2020

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Meredith Connell (William Fotherby/Alexandra Tumahai), Auckland, for Creditor
Copy for:
P R Prescott, North Shore, Auckland

NEW ZEALAND POLICE v PRESCOTT [2020] NZHC 1727 [9 July 2020]

[1] This is a bankruptcy proceeding. The Police applied for Mr Prescott to be made bankrupt, alleging that he owed them $44,884.81. That was made up of three orders for costs:

(a)$27,111.02 ordered by the District Court on 17 October 2016;

(b)$5,819.00 ordered by Moore J in an unsuccessful application by Mr Prescott to stay execution of the District Court judgment;1 and

(c)$9,923.50 ordered against Mr Prescott when he unsuccessfully applied to set aside a bankruptcy notice.2

[2] Mr Prescott had sued the Police alleging breaches of rights under the New Zealand Bill of Rights Act 1990. In the District Court, Judge Cunningham dismissed his claim and ordered him to pay costs of $27,111.00. Mr Prescott appealed against the District Court decision and applied for judicial review. On 18 December 2019, Gault J dismissed the appeal and judicial review application but because of the Bill of Rights issues he indicated that costs in the High Court should lie where they fall.3 In a later decision of 30 April 2020, he ruled that costs in the District Court should also lie where they fall, again because of the Bill of Rights issues.4

[3] In the meantime, the Police had applied for Mr Prescott’s adjudication in bankruptcy. That application was held over to await the hearing of the appeal and the judicial review application. In March 2018, Mr Prescott paid the Police $16,079.39. That cleared his liability to the Police for the $5,819.00 and the $9,923.50 plus interest. The Police continued the proceeding relying only on the District Court costs order. When Gault J set aside the District Court costs order, the Police were no longer a creditor of Mr Prescott. They accept that they can no longer apply for his adjudication. They wish to discontinue the proceeding.

1      Prescott v Police [2017] NZHC 620.
2      Prescott v Police [2017] NZHC 2701.
3      Prescott v Police [2019] NZHC 3376.
4      Prescott v Police [2020] NZHC 847.

[4]Before that can happen, though, Mr Prescott says that he should be repaid the

$16,079.39 he paid the Police in March 2018. He paid that sum after this proceeding had started and as a way of addressing two of the debts in the Police’s bankruptcy application. Mr Prescott says that as the District Court costs order has been set aside, he should be repaid…

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 Police v Prescott

Details

AGLC: Police v Prescott [2020] NZHC 1727
Case: [2020] NZHC 1727
Decision Date: 9 July 2020

CaseChat Overview and Summary

The case of New Zealand Police v Prescott was heard by the High Court of New Zealand in Auckland. The police had applied for the adjudication of Mr Prescott in bankruptcy, alleging that he owed them $44,884.81 in costs. Mr Prescott, however, had paid $16,079.39 to the police in March 2018, which covered two of the costs orders. He sought a repayment of this sum, arguing that the setting aside of the District Court costs order meant that he should be repaid the other costs he had paid linked to this order. The central legal issue was whether the police should be required to refund the money Mr Prescott had paid them in March 2018.

The court considered whether the general principle that a successful appellant should be restored to the position they would have occupied had their outcome been adopted from the beginning applied to the costs orders. The court noted that while the District Court costs order had been set aside, this did not mean that the costs decisions had no independent validity. The court held that the costs decisions had their own independent validity, notwithstanding Mr Prescott's ultimate success in having the District Court costs decision set aside. Therefore, the police could be treated as always entitled to enforce them and were entitled to retain the money that Mr Prescott paid them in March 2018.

Accordingly, the court could not see a basis for requiring the police to refund the $16,079.39 to Mr Prescott. The court granted leave to the police to withdraw the application against Mr Prescott and made no further orders. Mr Prescott indicated his intention to appeal the decision, and the court ruled that he was entitled to appeal as of right without first seeking leave of the court.

This case highlights the importance of considering the independent validity of costs decisions, even if a party ultimately succeeds in having a related costs order set aside. The court's decision also emphasises the principle that a successful appellant should be restored to the position they would have occupied had their outcome been adopted from the beginning, but this principle does not necessarily apply to all costs orders.

Orders