The International Academy of New Zealand Limited v New Zealand Qualifications Authority

[2016] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2366 [2016] NZHC 1149

BETWEEN

THE INTERNATIONAL ACADEMY OF

NEW ZEALAND LIMITED Plaintiff

AND

THE NEW ZEALAND QUALIFICATION AUTHORITY Defendant

Hearing:	On the papers
Appearances:	B O'Callahan and M Chen for plaintiff R Scott and M Cavanaugh for defendant
Judgment:	31 May 2016

JUDGMENT OF LANG J [on costs]

This judgment was delivered by me on 31 May 2016 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

THE INTERNATIONAL ACADEMY OF NEW ZEALAND LTD v THE NEW ZEALAND QUALIFICATION AUTHORITY [2016] NZHC 1149 [31 May 2016]

[1]      On 12 April 2016 I issued a judgment in which I granted the application by the  International Academy of  New  Zealand  Limited  (the Academy)  for  judicial review of the process that the New Zealand Qualifications Authority (the Authority) adopted in relation to the preparation of a final report dated 2 October 2015.1   I set the report aside by consent because the Authority acknowledged that there were shortcomings on the review process that led to the report being issued.  I then made

ancillary directions designed to ensure that the Authority continued with the review process in a timely fashion.

[2]      The parties have been unable to reach agreement regarding costs.  For that reason I am therefore required to determine that issue.

The arguments

[3]      The Academy contends that it is the successful party in that it obtained the orders that it sought.  It therefore seeks costs on a category 2B basis in respect of all steps taken in the proceeding.

[4]      The Authority accepts that the Academy should receive an award of costs in relation to the commencement of the proceeding.   It points out, however, that the Academy did not obtain the remedy it originally sought.   It had originally endeavoured to persuade the Court that the 2014 review process should not continue through to completion.  It abandoned that stance during the course of the hearing. For that reason the Authority contends that costs should lie where they fall in relation to all steps taken after the filing of the statement of defence.   Alternatively, the Authority  contends  that  the  Court  should  exercise  its  discretion  to  award  the Academy “a modest proportion of its costs” after the commencement of the proceeding.

Decision

[5]      I accept that the Academy did not succeed with a major plank of its original case in that it failed to persuade the Court that it should order the 2014 review

1      The International Academy of New Zealand Ltd v The New Zealand Qualification Authority

[2016] NZHC 640.

process to be abandoned in its entirety.  I also consider, however, that the Authority failed in relation to one of its major arguments.  This flows from the fact that the Court made remedial orders that were significantly broader in scope than those sought by the Authority. That issue also needs to be factored into the equation.

[6]      I consider the competing positions are best addressed by an award of costs in favour of the Academy calculated at 80 per cent of the costs payable on a category

2B basis in respect of all steps taken after the filing of the statement of defence in which the Authority acknowledged that errors in the process had occurred.   The Academy is entitled to costs on a category 2B basis in respect of all steps taken prior to that point.   I make an order accordingly.   The Academy is also entitled to its

reasonable disbursements as fixed by the Registrar.

Lang J

Solicitors:

Kirkland Morrison O’Callahan & Ho, Auckland
McElroys, Auckland