Robarts v Wilson

[2014] NZHC 1695

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001149 [2014] NZHC 1695

IN THE MATTER

of an appeal under s 72 of the District

Courts Act 1947

BETWEEN

PHILIP ROBARTS and ADAM HOWARD

Appellants

AND

CONSTABLE RHYS WILSON Respondent

Hearing:	On the papers
Judgment:	18 July 2014

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 18 July 2014 at 4.45 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Stephen Rodney Anderson, Auckland

Meredith Connell, Auckland

Copy to:            A Speed, Auckland

ROBARTS & Anor v WILSON [2014] NZHC 1695 [18 July 2014]

[1]      By consent, orders were made on 7 July extending the time for the applicants to file an appeal, allowing the appeal and remitting the matter back to the District Court.

[2]      The appellants seek costs on a 2B basis for the application to extend time, filing the appeal and appearance at callover together with disbursements.

[3]      The application is opposed.

Background

[4]      The appeal relates to vehicles seized by the police under a search warrant. The vehicles were subsequently forfeited by the police pursuant to s 155 of the Search and Surveillance Act 2012.

[5]      The appellants claim to be interested in the vehicles.  They say that the police officer involved did not comply with s 155(2) of the Search and Surveillance Act

2012 and were unaware that the police would seek forfeiture orders when the matter was before the Court in September 2013.

[6]      The application for leave to appeal together with an application for leave to appeal out of time was not filed until 7 May 2014.

[7]      The Crown oppose costs noting there was a significant delay in filing the appeal proceedings.   The application for leave to appeal was nearly eight months after the September hearing in the District Court and well over six months out of time.  The respondent submits the appellants have not provided a proper explanation for the delay.

[8]      The Crown says the appeal was conceded on the basis of procedural issues alone, not as to the merit and the delay has led to prejudice to the respondent as the items in dispute were sold on 27 November 2013.

[9]      Mr Speed submits the reason the appellants did not take any steps was that they were not on notice because the police did not follow correct procedure.

[10]     Having reviewed the file I accept that an order for costs is appropriate for the appeal which was allowed by consent, but not for the application to bring the appeal out of time.

[11] I note that in the context of the Proceeds of Crime Act 1991 s 17(2) provides for a third party to apply to the Court for relief against forfeiture up to six months after the forfeiture order. While somewhat arbitrary, Parliament has determined that six months is long enough for a party to learn of the forfeiture and to take action.

[12]     In the present case the appellants were generally aware of the seizure but, as noted over six months elapsed before they took any steps.

[13]     Mr Speed says the appellants have explained the delay.

[14]     However, I do not consider the delay in the present case once they became aware of the situation is explained satisfactorily.  It is only explained in very general terms by Mr Howard in the following way:

… largely due to investigating the proper approach to addressing this matter.

This included contacting a large number of people to establish the fact that no one had been notified, collecting documentation, and instructing a lawyer in this field of appellant law.

[15]     The length and reasons for delay do not support costs being awarded on the application for leave.

[16]     However, the appellants have succeeded on the appeal.   There will be an order for costs on a 2B basis in the appellants’ favour for:

Commencement of the appeal	1.0 day	$1,990.00
Appearance at callover	0.2	$398.00
$2,388.00
Disbursements
Filing fee – appeal	$540.00
Total:	$2,928.00

Venning J