Robinson v Whangarei Heads Enterprises Limited

[2015] NZHC 2403

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-000185 [2015] NZHC 2403

BETWEEN

JOHN CLIFFORD WALTER ROBINSON

Plaintiff

AND

WHANGAREI HEADS ENTERPRISES LIMITED

First Defendant

VICTOR LEONARD FREAKLEY Second Defendant

On the papers
Counsel:	M Corlett for Plaintiff S R Ebert for Defendants
Judgment:	2 October 2015

JUDGMENT OF GILBERT J [Costs]

This judgment is delivered by me on 2 October 2015at 3 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ROBINSON v WHANGAREI HEADS ENTERPRISES LIMITED [2015] NZHC 2403 [2 October 2015]

Introduction

[1]      Mr  Robinson  claimed  damages  from  Whangarei  Heads  Enterprises  Ltd (the Company) and its sole director, Mr Freakley, after the Company obtained an order  for  Mr Robinson’s  arrest  pursuant  to  s  55  of  the  Judicature  Act  1908. Mr Robinson claimed that the order for arrest was improperly obtained.  He pursued two causes of action in tort, abuse of process and malicious prosecution.  He sought general damages in the sum of $50,000, unspecified exemplary damages and solicitor/client costs.

[2]      In a judgment delivered on 27 May 2015, I determined that the order for arrest was procured improperly because important information was not disclosed to the Court.1   Had there been proper disclosure, it would have been apparent that there were no proper grounds for the order and it would not have been made.  However, I concluded that Mr Robinson had failed to establish all of the essential elements of the torts of abuse of process and malicious prosecution.  I therefore dismissed those

causes of action but made an order that the Company pay compensatory damages in the sum of $10,000 pursuant to the undertaking as to damages that the Company had given to the Court when applying for the arrest order.

[3]      Mr  Robinson  seeks  indemnity  costs  in  the  sum  of  $21,371.97  plus disbursements of $12,920.  Costs calculated on a 2B basis amount to $20,895 plus disbursements.2

[4]      The  defendants  submit  that  costs  should  be  reserved  until  a  related proceeding, known as the trespass proceeding, has been determined.3    The present proceeding and the trespass proceeding were case managed together but were not consolidated.

[5]      The defendants submit that any costs award should be in their favour because

Mr Robinson’s two causes of action both failed and his ultimate success, based on the  undertaking,  resulted  from  an  indulgence  granted  by  the  Court  at  the

1      Robinson v Whangarei Heads Enterprises & Another [2015] NZHC 1147.

2      The amount claimed in schedule 1 of the plaintiff ’s submissions incorrectly shows a total of

$20,985.

3      Robinson v Whangarei Heads Enterprises & Anor CIV-2013-488-223.

commencement of the trial.  The defendants seek costs in the sum of $34,228 plus the filing fee disbursement of $110.

[6]      The defendants submit that Mr Robinson is, in any event, not entitled to an award of costs for the steps taken while he was unrepresented.  Further, they contend that any award of costs in his favour should be offset by an award of costs made in their  favour  by  Bell  AJ  on  their  successful  application  for  an  order  requiring Mr Robinson to pay security for costs.

The issues

[7]      The issues are:

(a)       Should the determination of costs be deferred until after the trespass proceeding has been determined?

(b)      Who is entitled to costs?

(c)       How should the costs be calculated?

Should  the  determination  of  costs  be  deferred  until   after  the  trespass proceeding has been determined?

[8]      The trespass proceeding raises quite separate issues from those determined in the present proceeding.  Although both proceedings were case managed together for convenience, they were not consolidated and were not directed to be heard together. The trespass proceeding may or may not proceed to trial.   I can see no principled reason why the issue of costs in the present proceeding should await the prospect of a  determination  of  the  trespass  proceeding.     On  the  contrary,  now  that  this proceeding  has  been  finally  determined,  it  is  appropriate  that  all  outstanding questions of costs be resolved.

Who is entitled to costs?

[9]      The defendants say that  they should be regarded as the successful party because  the  claims  pleaded  against  them  both  failed.    However,  against  that,

Mr Robinson successfully vindicated his  essential  complaint  which  was  that  the Court was misled by the defendants when they sought the order for his arrest and that he was wrongfully arrested and detained in custody at Mt Eden Prison as a result.   He obtained an award of damages to compensate for the embarrassment, indignity and distress he suffered.  Overall, I consider that Mr Robinson should be regarded as the successful party and that costs should follow the event in the usual way.

How should the costs be calculated?

Should indemnity or increased costs be awarded to Mr Robinson?

[10]     I do not consider that an award of indemnity costs in favour of Mr Robinson is  appropriate  in  this  case  for  the  following  reasons.    First,  there  is  merit  in Mr Ebert’s submission that Mr Robinson’s claim was not adequately pleaded until he engaged counsel at a comparatively late stage.   The defendants were put to some unnecessary expense as a result of Mr Robinson’s inability to plead his claim correctly until then.  Second, the pleaded claims failed.  This demonstrates that the defendants did not act improperly in resisting the pleaded claims that were brought against them.  Third, Mr Robinson’s claim ultimately succeeded only because he was permitted, at the commencement of the trial, to advance an alternative claim based on the undertaking as to damages.  For the same reasons, I do not consider that an uplift on scale costs can be justified.

Costs category and band

[11]     There is no dispute that this is a category 2 proceeding and that costs should be calculated in accordance with band B.

Costs for steps taken while unrepresented

[12]     I accept Mr Ebert’s submission that Mr Robinson is not entitled to costs for

steps taken while he was unrepresented.

Cost calculation

[13]     Because the pleaded claims failed, I do not consider that costs should be allowed for preparing the statement of claim.  With that exception, the costs claimed by Mr Robinson as set out in schedule 1 to the submissions filed on his behalf are allowed.  These are the scale costs for preparing the briefs of evidence, preparing for the  hearing  and  for  the  hearing  itself.    These  steps  were  required  to  establish Mr Robinson’s entitlement to damages and were all taken after solicitors and counsel were instructed.  The scale costs for these steps total $14,925.  The disbursements claimed of $12,920 are also allowed.

Are the defendants entitled to offset costs awarded in their favour?

[14]     Bell AJ granted the defendants’ application for security for costs and ordered Mr Robinson to pay costs on the application on a category 2 basis.   However, Heath J  quashed  the  order  made  by  Bell AJ  and  dismissed  the  application  for security for costs.4   It follows that there can be no offset for these costs; the order no longer exists.

Result

[15]     The first defendant is to pay costs to the plaintiff in the sum of $14,925 plus disbursements of $12,920.

M A Gilbert J

4      Robinson v Whangarei Heads Enterprises Ltd [2013] NZHC 2247 at [59](a).