Police v Casino Bar (no.3) Limited (in receivership) [2013] NZHC 1716 (8 July 2013)

Last Updated: 30 July 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1491 [2013] NZHC 1716

UNDER the Sale of Liquor Act 1989

IN THE MATTER OF a decision of the Liquor Licensing

Authority [2012] NZLLA 723 dated

27 June 2012

BETWEEN NEW ZEALAND POLICE Appellant

AND CASINO BAR (NO 3) LIMITED (IN RECEIVERSHIP)

First Respondent

CGML LIMITED Second Respondent

EARL FORRESTER HILTON Third Respondent

On papers

Judgment: 8 July 2013

_{COSTS JUDGMENT OF DOBSON J}

[1] The appellant was successful in this appeal. In my judgment of 4 February

2013, I quashed the relevant decision of the Liquor Licensing Authority (the Authority) and revoked the licence that the Authority had purported to issue to the first respondent.

[2] On the issue of costs, my judgment included the following:

If necessary, I will receive memoranda as to costs. My provisional view is that the Police are entitled to costs on the appeal from the first respondent. I am unlikely to be persuaded to grant costs in favour of the second respondent.

NEW ZEALAND POLICE v CASINO BAR (NO 3) LIMITED (IN REC) [2013] NZHC 1716 [8 July 2013]

[3] Since then, the second respondent filed a memorandum seeking costs on

14 February 2013, and counsel for the (unsuccessful) first respondent filed a memorandum dated 18 March 2013 opposing any order of costs in favour of the second respondent. The second respondent, by its counsel, responded to that by a second memorandum dated 21 March 2013.

[4] More recently, the appellant filed a memorandum dated 4 June 2013, seeking costs and quantifying the extent of those.

[5] These documents have only more recently been referred to me.

[6] The appellant is entitled to costs and I confirm its entitlement to the items claimed, totalling $12,736 for costs and $1,933.50 for disbursements. I order costs and disbursements in favour of the appellant in those amounts.

[7] The second respondent has sought costs totalling $12,935. Its grounds for doing so were that its position on the appeal was effectively that of an appellant, and that it had succeeded in arguments supporting the outcome that had been contended for by the appellant.

[8] In addition, shortly before argument of the appeal, the second respondent’s entitlement to participate was challenged by the first respondent seeking to have the second respondent struck out as a party to the appeal.

[9] The terms of my judgment rejected the strike out because, in essence, the Authority had erred in treating the second respondent’s objection to the relevant licence application as being entirely one reflecting the concerns of a competitor when that was not so. It was therefore appropriate that the second respondent had standing to participate in the appeal. The second respondent has relied on the Supreme Court decision in Manukau Golf Club Inc v Shoye Venture Ltd, which confirms the general proposition that an unsuccessful party in litigation is to pay

_{costs to the party that succeeds.}[1] _{Further, that the Court’s discretion is not}

unfettered, must be exercised judicially, and that the general rule is to apply in the absence of some reason to the contrary.[2]

[10] Here, the substantive outcome would not have been any different had the second respondent not participated. In a narrow sense, the “winning party” was the appellant. Certainly, the second respondent was able to maintain its status as a party entitled to be heard on the appeal and as an objector at any fresh hearing of the first respondent’s application. However, my judgment recognised that a factor in the weight that would be given to the second respondent’s objection would no doubt be influenced by the second respondent’s position as a competitor of the first respondent.

[11] I consider that the commercial interest in limiting competition, which is a motive appropriately attributed to the second respondent, is a reason to diverge from the presumptive rule as to costs entitlements.

[12] In addition, the first respondent opposed any order on the basis that it had made a without prejudice offer to submit its entitlement to a licence to a fresh hearing before the Authority in a forum which could include the second respondent as a party entitled to be heard. That proposal had been rejected on behalf of the second respondent because it wanted to deny the first respondent the benefit of the licence that had been granted, in the meantime. Although, as a matter of law, I held that the Authority had erred in assuming jurisdiction to order the immediate issue of a licence to the first respondent, the stance that had been adopted on behalf of the first respondent was reasonable in the circumstances as they then were.

[13] Accordingly, I confirm my provisional indication that the second respondent is not entitled to costs.[3]

[14] I acknowledge a significant delay in resolving these costs entitlements, since the various parties raised the matter by way of memoranda. I apologise on behalf of

_{the Court for that delay. If the delay in confirming the appellant’s entitlement to a}

costs order has prejudiced its position, solicitors for the appellant may raise the matter with the Registrar of the Court.

Dobson J

Solicitors:

Luke Cunningham & Clere, Wellington for appellant

Lane Neave, Christchurch for first respondent

Buddle Findlay, Wellington for second respondent

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[1] Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305.

[2] _{At [7].}

[3] High Court Rules, r 14.7(f)(v).