Pritchard v Evans

[2014] NZHC 285

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003014 [2014] NZHC 285

IN THE MATTER

of an application for review under the

Judicature Amendment Act 1972 and an application for declaration under the Declaratory Judgments Act 1908

BETWEEN

SAMUEL HAROLD PRITCHARD Plaintiff

AND

ROSS EVANS and MARGARET LEWIS as trustees of the ONEHUNGA WORKINGMEN'S CLUB

Defendants

Hearing:	On the papers
Counsel:	S Perese for Plaintiff RO Parmenter for Defendants
Judgment:	26 February 2014

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Wednesday, 26 February 2014 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Keil & Associates, Auckland.

Daniel Overton & Goulding, Auckland. S Perese, Auckland.

RO Parmenter, Auckland.

PRITCHARD v EVANS [2014] NZHC 285 [26 February 2014]

[1]      In  a  judgment  of  28  November  2013,  I  determined  a  judicial  review application brought by the plaintiff, Samuel Pritchard, against the trustees of the Onehunga Workingmen’s Club.1    Mr Pritchard had been involved in an incident at the Club and claimed that the Club’s later treatment of him, and in particular a suspension  of  him  as  a  member  and  the  removal  of  him  as  a  trustee,  were procedurally unfair, invalid and in breach of the rules of natural justice.   My conclusions are summarised at [59]–[62] of the judgment.

[2]      In issuing my judgment in relation to costs, I observed:2

It may well be the case that the parties conclude that given the outcome costs should lie where they fall.  However, if costs cannot be agreed submissions for the plaintiff should be filed within 14 days, and submissions for the defendants within a further 14 days.

[3]      As I understand the position, Mr Parmenter for the defendants was prepared to accept that costs should lie where they fall.  Mr Perese for Mr Pritchard does not accept this.  He seeks costs on a scale basis, and seeks an indication that this is a case where “indemnity costs could well be sought”.

[4]      Mr Parmenter in his submissions goes through the various complaints scoring losses and successes for each party.  On his submission the Club ended up ahead in relation to the outcome of the proceedings, and that the worst result must be that costs lie where they fall.

[5]      Although his initial position was that costs should lie where they fall, he asks for a global sum of half scale costs on a 2B basis being $4,477.50.

Discussion

[6]      It is not possible to score precise wins and losses when there are a number of complaints that are resolved in a proceeding.  Some complaints can take far more of the Court’s time than others.   It is not desirable for Court to resort to an overly

arithmetical calculation of the time spent on issues.3   The matter is dealt with best on a broad basis.4

[7]      Mr Perese in his over 12 pages of submissions refers to the Mr Pritchard’s successes in the proceeding.   There is no doubt that there was a wrong done to Mr Pritchard and that he was suspended contrary to the rules of natural justice. However, it should not be thought that Mr Pritchard has a monopoly on moral correctness.   While the Club was at fault procedurally and for that reason cost consequences against it should follow, the background was an unseemly incident where in my view it cannot be said that Mr Pritchard was without fault.

[8]      In relation to the second portion of the claim, where I refused to quash Mr Pritchard’s removal as a trustee, Mr Perese endeavours to re-argue some points. In essence he is saying that my decision was wrong.  If that is so the remedy lies in an appeal, rather than in cost arguments.  I put those submissions to one side.  This includes a submission on Mr Perese’s part where he stated that he did not put various arguments that he should have put.  Again, that is not a proper matter to raise in a costs hearing.

[9]      As my judgment makes clear Mr Pritchard was, in the unsuccessful removal of a trustee part of his claim, trying to set aside a valid resolution of members.  Many of the grounds he raised at the hearing, which took some time to hear and determine, were entirely technical.

[10]     So when I look at the matter on a global basis, Mr Pritchard won well on the first part of his claim and was thoroughly deserving of costs as he had been unjustly suspended as a member, but lost heavily in the second part.  If that second part alone had proceeded, the defendant would have been entitled to costs.

[11]     I do bear in mind that Mr Pritchard was entitled to bring proceedings.  There had been a wrong done to which he was entitled to redress.  The concessions which

led to the first part of the claim proceeding quite quickly were only made at the hearing.

[12]     On the other hand, at the hearing more time was spent on the second part of the case in which Mr Pritchard was unsuccessful.

[13]     There is  nothing to  indicate that  either party will  find  the cost  of these proceedings easy to bear.  I am mindful of the fact that funds will be at a premium on both sides.

[14]     In the end it is my sense of the justice of the situation which some modest award should be made in Mr Pritchard’s favour to reflect that although he did not succeed on a significant part of his claim, a wrong was done to him, and he was entitled to issue proceedings, and argue them in court.  The fact that he was wronged and had to bring proceedings in my assessment entitles him to a limited award of costs, despite his failure on the removal claim.  I fix that amount at $4,000 together with reasonable disbursements.

Result

[15]     The defendant will pay $4,000 towards the plaintiff’s costs, together with the plaintiff’s reasonable disbursements.

[16]     Both parties have had a measure of success in this application, and there will be no further order for costs.

……………………………..

Asher J