Wilkins v Official Assignee

[2016] NZHC 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-003086 [2016] NZHC 2020

BETWEEN

ALLAN KENITH WILKINS

Applicant

AND

OFFICIAL ASSIGNEE Respondent

Hearing:	On the papers
Counsel:	N Malarao and K R Muirhead for Housing New Zealand Corporation A K Wilkins in person the Applicant
Judgment:	29 August 2016

COSTS JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

29.08.16 at 3:00pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

A K WILKINS v OFFICIAL ASSIGNEE [2016] NZHC 2020 [29 August 2016]

[1]      This  proceeding  concerned  Mr Wilkins  application  which  challenged  the Official Assignee’s acceptance of a claim by Housing New Zealand Corporation (HNZC) for $151,129.97 in Mr Wilkins bankruptcy.  By the Court’s judgment on 29

July 2016 Mr Wilkins’ application was dismissed.

[2]      HNZC applies for costs to be fixed on a category 2B basis.  Mr Wilkins has filed a memorandum opposing the fixing of costs.   He suggests costs should lie where they fall.

[3]      Mr Wilkins position is supported by the following submissions, inter alia:

(a)      He is still convinced of his innocence and says he committed no crime and  he  did  not  supply  any  false  information  when  applying  in

2004/2005 to become a HNZC tenant.

(b)He should not be penalised for exercising his rights as a lay litigant in attempting to “set the record straight” and “with the compelling new evidence obtained after the civil trial”.

(c)      He had researched prior case authority and believed proper reason lay in this case for enquiring into HNZC’s claim of a judgment debt.

(d)      He could not afford the services of a lawyer.

[4] Following the Court’s decision on 1 September 2014 dismissing Mr Wilkins’ application for leave to appeal out of time against a conviction entered against him in June 2009, Justice Courtney fixed costs against Mr Wilkins in the sum of $226 in accordance with the provisions in the Costs in Criminal Cases Act 1967 and Costs in Costs in Criminal Cases Regulations Act 1987. Her Honour refused at that time to award costs of a further $3,500 on the basis that Mr Wilkins application for leave was a deliberate collateral attack on previous decisions, lacked merit and was therefore frivolous or vexatious.

[5]      Mr Wilkins is a lay litigant.  This proceeding, like others before it concern attempts by Mr Wilkins to effectively have his adjudication set aside.  In this case, as

in others before it, the Court concluded that claims of a miscarriage of justice that might justify further enquiry by the Court could not be made out much less proved that HNZC’s claim was improperly admitted.

[6]      Further, and before Mr Wilkins’ case was to be heard he was cautioned by Associate Judge Bell that he was undertaking a difficult task in trying to persuade the Court that the decision of the District Court be in favour of HNZC could not be relied on as establishing his indebtedness to HNZC.

[7]      In this case the Court agrees with the submission of Mr Muirhead on behalf of HNZC that Mr Wilkins application had no realistic prospect of success.   The Court agrees that in that outcome Mr Wilkins application has imposed an extra burden of legal costs upon HNZC and in that outcome Mr Wilkins’ proceeding has impacted upon HNZC as the principal creditor in his bankrupt estate.

[8]      This Court sees no reason not to fix costs on a 2B basis as would usually have occurred.

[9]      Mr Muirhead submits that while the current application should have been commenced under Part 18 of the High Court Rules and therefore a statement of claim and application for directions as to service and representation ought to have been made, the application was effectively treated as an originating application under Part 19.  In the circumstances the Court agrees and should exercise its general costs discretion to award costs on the application to HNZC as though the application was an originating application.

Result

[10]     Costs are awarded to HNZC on a category2B basis in the sum of $10,704, as applied for.

Associate Judge Christiansen