Thavarag v Willis Street Parking Limited

[2023] NZHC 163

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-000654

[2023] NZHC 163

BETWEEN

MARIATHAS JOHNSON THAVARAG

Appellant

AND

WILLIS STREET PARKING LIMITED

Respondent

Hearing:	On the papers
Appearances:	N Donaldson & J J Pietras for the Appellant F S Tuteja for the Respondent
Judgment:	10 February 2023

JUDGMENT OF GRICE J

(Costs)

[1]                  On the 3 February 2023 I set aside the summary judgment entered in the District Court in favour of the respondent largely due to procedural failures which had resulted in a breach of natural justice. The matter was remitted to the District Court for reconsideration.1

[2]                  Mr Thavarag was legally aided and indicated he would be seeking costs. I noted that it appeared appropriate that costs should follow the event. However, if the parties were unable to agree, any application for costs and submissions were to be made in accordance with a timetable set out in the decision.

1      Thavarag v Wilson Street Parking Limited [2023] NZHC 105 [3 February 2023] (the decision).

THAVARAG v WILLIS STREET PARKING LIMITED [2023] NZHC 163 [10 February 2023]

[3]                  The parties have been unable to agree on costs. The main issue between them is the level of costs. I had indicated that it might be appropriate that costs be calculated on a 2B basis.

[4]                  However the appellant advises that the costs when calculated on that basis total more than the actual costs incurred calculated on a legal aid basis.

[5]                  The appellant submits that costs should be awarded on a 2B basis, despite the fact that such an award would exceed actual costs incurred. This submission is made on the basis that if the courts were inclined to award scale costs to legally aided recipients then more practitioners would be able to provide legal aid services to the public as it would encourage legal aid lawyers to offer a “quasi-contingency fee arrangement” to those who cannot afford legal services at a private charge out rate. This would increase access to justice. If the court were only to award the appellant his actual legal aid costs, which amount to $5761.51 as opposed to those calculated on a 2B basis of $13,623 the incentive to act for impecunious clients on legal aid is taken away. If 2B costs were awarded the appellant’s counsel could seek from the Commissioner a conditional “top up” payment.

[6]                  The respondent resists an award of costs higher than those actually incurred. Ms Tuteja does not resist a costs award of the actual amount incurred and points out that there is no material produced to justify an award for a higher amount.

[7]                  In my view this Court must apply the principles which apply to costs as set out in the High Court rules. While the court retains a discretion, it must be exercised on a principled basis. There may be some wider objectives which may be served by the court awarding costs on another basis, but in my view they are not appropriate considerations here. The costs regime is designed so that an award of costs is calculated according to principles which are well established. They are designed to promote justice, certainty and expedition and relate to the proceedings before the court. They are not intended to provide incentives to promote wider objectives.

[8]                  In those circumstances I consider an appropriate award of costs in this case is an amount reflecting the actual costs, which is less than category 2B costs. This is in accordance with well-established principles relating to the award of costs.

[9]                  Costs of $5,761.51 are awarded against the respondent in favour of the appellant.

Grice J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt

Stonewood Group Limited, Downtown Auckland