Tukaki v Ruru

[2022] NZHC 1800

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-326

[2022] NZHC 1800

IN THE MATTER

of the Māori Community Development Act 1962 and the Māori Community
Development Regulations 1963

BETWEEN

MATTHEW TUKAKI and RAEWYN HARRISON

Plaintiffs

AND

HARVEY RURU

First Respondent

LYNNE RAUMATI
Second Respondent

THE ATTORNEY-GENERAL

Third Respondent

Hearing:

On the papers

Appearances:

C F Finlayson QC, J W J Graham and R M A Jones for Plaintiffs F Geiringer for First Respondent

P Cornegé for Second Respondent

Judgment:

26 July 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]The plaintiffs discontinued this proceeding by notice of discontinuance dated

1 September 2021. Costs were not resolved between the parties. In a joint memorandum dated 1 November 2021 the first and second respondents sought costs. The third respondent has not joined them in doing so. The plaintiffs responded by memorandum dated 11 November 2021.

TUKAKI v RURU [2022] NZHC 1800 [26 July 2022]

[2]        The costs issue was referred to me on 25 July 2022. I am unaware of the reasons for the delay. However, the delay to this point makes it especially important to deal with the matter promptly.

[3]        As Mr Geiringer and Mr Cornegé say, the first and second respondents are entitled to costs on the discontinuance in terms of r 15.23 of the High Court Rules 2016. Costs are sought in accordance with the scales contained in pt 14 of the Rules, for the most part on a 2B basis.

[4]        The plaintiffs accept, as of course they must, that they are liable for costs, but they challenge aspects of the costs claimed.

The first respondent’s costs claim

[5]        Insofar as the claim under item 22 of the third schedule is concerned, the plaintiffs say that the first respondent should not recover costs in relation to his application to strike out their claim. This is because, so it is said, counsel for the first respondent should have contacted counsel for the plaintiffs and alerted him to the proposed application, whereupon he would have been told that the plaintiffs proposed to amend their claim, thus avoiding the need for the application in the first place.

[6]        I do not accept that contention. The rules relating to costs are designed to discourage minute analyses of every step in the process. In any event, even on the plaintiffs’ contention, it would appear that the plaintiffs’ pleading in the first place gave rise to the need for such an application. Whilst Mr Finlayson makes a fair point that in the generality of cases counsel will liaise in order to avoid incurring unnecessary costs, in the end, the first respondent is entitled to a costs order.

[7]        The plaintiffs also challenge the respondents’ claim under item 10. In relation to this, it is said that the item anticipates a comprehensive case management conference, whereas what occurred in this case was merely a mention in the duty judge’s list.

[8]        Again, I reject this submission on the ground that costs based on the scales should be as predictable as possible and that that is not conducive to fine analysis of the actual time incurred on a case-by-case basis.

The second respondent’s costs claim

[9]        The plaintiffs say that the second respondent’s costs, which are modest because they include only costs incurred prior to a grant of legal aid, should be allowed not on a 2B basis as claimed but on a 1A basis, essentially because the defences put up by the first and second respondents were the same and that it should not be assumed that the work was duplicated. Again, I disagree. The plaintiffs elected to sue all three respondents. The respondents were entitled to elect to be separately represented. It would be inappropriate for the Court to speculate at this point as to whether or not they may have perceived potential differences between them and potential conflict.

[10]      On the other hand there is considerable force in Mr Finlayson’s submission in relation to the second respondent’s claim under item 26. It is apparent that the first and second respondents adopted indistinguishable positions at the interlocutory hearing, and r 14.15 says that in such a situation only one set of costs is to be allowed. I have already allowed costs on a 2B basis for the hearing and a second set of costs would be inconsistent with that rule. The fairest approach is to allow one set of costs for the hearing to the first and second respondents jointly.

Conclusion

[11]There will be costs awards against the plaintiffs in favour of:

(a)the first respondent in the sum of $11,733.00 (which includes a $500 disbursement);

(b)the second respondent in the sum of $956.00; and

(c)the first and second respondents jointly in relation to the interlocutory hearing of $1,195.00.

Associate Judge Johnston

Solicitors:

Chapman Tripp, Auckland for Plaintiffs

Woodward Law Offices, Lower Hutt for First Respondent