Wilkins v Housing New Zealand Corporation

[2014] NZHC 833

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-004885 [2014] NZHC 833

UNDER  the Judicature Amendment Act 1972

BETWEEN  ALLAN KENITH WILKINS Applicant

ANDHOUSING NEW ZEALAND CORPORATION

Respondent

Hearing:                   On the papers.

Judgment:                28 April 2014

JUDGMENT OF ANDREWS J [Costs]

This judgment is delivered by me on 28 April 2014 at 12pm pursuant to r 11.5 of the High Court Rules.

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

WILKINS v HOUSING NZ [2014] NZHC 833 [28 April 2014]

Introduction

[1]      In my judgment in this proceeding delivered on 19 March 2014 I struck out Mr  Wilkins’  proceeding  seeking  judicial  review  of  three  alleged  decisions  by Housing New Zealand (“HNZ”).1   These were a decision of the HNZ investigations committee to refer its investigation of Mr Wilkins to Meredith Connell for prosecution, a “plea bargain arrangement” entered into in respect of charges laid against Mr Wilkins, and HNZ’s decision to pursue a civil recovery action against Mr Wilkins.

[2]      On behalf of HNZ, Ms Cuncannon has now filed a memorandum seeking an order  for  increased  costs  against  Mr  Wilkins.    In  a  memorandum  in  response, Mr Wilkins submitted that costs should lie where they fall.

Submissions

[3]      Ms Cuncannon submitted that the proceedings are of average complexity, and

that scale costs should be calculated on a 2B basis.   HNZ’s costs calculated on a

2B basis amount to $11,343, together with disbursements totalling $310.

[4]      Ms  Cuncannon  submitted  that  an  uplift  may  be  ordered  pursuant  to r 14.6(1)(a) of the High Court Rules, on the grounds that Mr Wilkins failed to act reasonably by commencing judicial review proceedings, the application for judicial review was entirely misconceived, it was a collateral attack on decisions in other proceedings, an abuse of the Court’s process, and undertaken with the clear purpose of delaying HNZ’s bankruptcy proceedings against Mr Wilkins.   Ms Cuncannon submitted that an uplift of 50 per cent from scale costs could be justified, but she sought an uplift of 35 per cent in light of the fact that Mr Wilkins was not legally represented.

[5]      Mr Wilkins denied that he had failed to act reasonably, that his application for judicial review was misconceived, and that his proceedings were a collateral attack

and/or an abuse of process.  He submitted that he genuinely believed when he lodged

1      Wilkins v Housing New Zealand Corporation [2014] NZHC 507.

the application for judicial review that HNZ had erred in its decision-making and he also genuinely believed that he had been misled in respect of his guilty pleas in the criminal proceedings.   Further, he submitted that he would have sought judicial review in any event, notwithstanding the bankruptcy proceedings, and the judicial review was not an attempt to elude the bankruptcy proceedings.

Discussion

[6]      Rule 14.1 of the High Court Rules provides that all matters relating to costs of or incidental to a proceeding are at the discretion of the Court.  Rule 14.2 sets out principles to be applied to the determination of costs. The first of these are:

(a)       the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds;

(b)      an award of costs should reflect the complexity and significance of the proceeding;

[7]      As  is  noted  in  the  commentary  to  the  High  Court  Rules,  r 14.1(a) encapsulates the primary principle that “costs follow the event” unless particular considerations dictate otherwise.2   There is nothing in Mr Wilkins’ submissions that persuades me that it is appropriate in this case to order that costs lie where they fall. The real issue is as to whether there should be an order that he pay costs above scale.

[8]      Rule 14.6 provides, that despite the earlier rules, a Court may make an order increasing costs otherwise payable under the rules (known as increased costs) or that the  costs  payable  are  the  actual  costs,  disbursements,  and  witness  expenses reasonably incurred by a party (known as indemnity costs).  In this case, HNZ seeks increased costs.

[9]      Rule 14.6(3) provides that increased costs may be ordered if (amongst other things):

(b)      the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

2      R A McGechan QC and Others McGechan on Procedure (Looseleaf ed, Thomson Reuters) at

[HR 14.2.01].

…

(ii)      taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)     failing,  without  reasonable  justification,  to  admit  facts, evidence, documents, or accept a legal argument;

…

…

(d)       some other reason which justifies the making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

[10]     In her submissions, Ms Cuncannon referred me to cases where costs have been awarded to the Crown against litigants in person, on strike out applications.  In Reid v Attorney-General, indemnity costs were allowed following a successful application to strike out proceedings relating to Mr Reid’s dismissal.3    In Payne v Attorney-General, costs were awarded on a 2B basis following a successful application to strike out proceedings concerning matrimonial property proceedings, it being noted in the judgment that increased costs might have been thought appropriate, but had not been sought by the Attorney-General.4

[11]     Ms Cuncannon also referred me to the decision in Apostolakis v Wellington Combined Taxis, in which a decision not to order increased costs was made “by a slim margin”.5     Ms Cuncannon further noted the decision in Baker v Waimakuku Whanau Trust Board Inc where a 50 per cent uplift on 2B costs was ordered on an unsuccessful joinder application which was a collateral attack, an abuse of process, and contributed unnecessarily to the time and expense of the proceeding.6

[12]     While there is force in Ms Cuncannon’s submission in support of an uplift against scale costs, I accept Mr Wilkins’ submission as to his genuine beliefs when

lodging the application for judicial review.  He was wrong in those beliefs in respect

3      Reid v Attorney-General HC Wellington CIV-2002-485-874, 25 June 2003.

4      Payne v Attorney-General HC Wellington CIV-2003-485-1203, 24 February 2004.

5      Apostolakis v Wellington Combined Taxis HC Wellington CIV-2009-485-2152, 31 March 2010 at [28].

6      Baker v Waimakuku Whanau Trust Board Inc HC Napier CIV-2010-441-581, 13 October 2011 at

[19]–[20].

of each of the matters on which he sought judicial review, but I have no reason to doubt the genuineness of his belief.

[13]     Accordingly, I do not accept HNZ’s claim that Mr Wilkins should be ordered

to pay costs above scale.

Result

[14]     Mr Wilkins is ordered to pay costs in the sum of $11,343, together with disbursements of $310. The total amount payable by Mr Wilkins is $11,653.

The bankruptcy proceeding

[15]     Now that the judicial review proceeding is completed, HNZ’s bankruptcy proceeding should now be determined.  The bankruptcy proceeding (Housing New Zealand Corporation v Allan Kenith Wilkins HC Auckland CIV-2013-404-3053) is to

be listed in the bankruptcy list on Thursday 8 May 2014 at 10:45 am.

Andrews  J