Thode v Chief Executive of the Ministry of Social Development [2015] NZHC 816 (23 April 2015)

Last Updated: 20 May 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11150 [2015] NZHC 816

BETWEEN	ROBERT THODE Appellant
AND	THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	On Papers
Counsel:	C J Griggs for Appellant N E Bailey for Respondent
Judgment:	23 April 2015

_{COSTS JUDGMENT OF BROWN J}

[1] The case stated by the Social Security Appeal Authority posed three questions of law. The appellant conceded that there was no error of law with reference to the second question while the respondent accepted that there was an error of law in respect of the third. That left the first question as the sole issue for determination.

[2] The appellant contended that the Authority should have found that the payments received by the appellant were in the nature of a loan and hence not income. The respondent argued that the Authority had conflated the Trust and the appellant and consequently failed to consider the nature of the payments made by the Trust to the appellant. The respondent sought a direction remitting the first question

_{to the Authority to make evidential findings.}

THODE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 816 [23 April 2015]

[3] The appellant seeks an order for costs inviting the Court to take into account three factors:

(a) the approach to costs mandated in s 12O of the Social Security

Act 1964;

(b) the fact that the appellant had no reasonable alternative to filing his appeal once the Authority had given its erroneous decision; and

(c) the straitened financial circumstances of the appellant. Costs are sought on a 1A basis in the sum of $7,656.

[4] The respondent resists an order for costs submitting that costs should lie where they fall. It is contended that overall the respondent’s argument prevailed resulting in the case being remitted back to the Authority.

[5] I accept the respondent’s submission for two reasons. First, its argument on the first question was accepted and the matter was remitted back to the Authority. Secondly, as is evidenced in the affidavit of Mr Z B De Malmanche, in December 2014 Crown Law made a proposal to the appellant for the resolution of the appeal on the basis that a joint memorandum be filed advising that the parties agreed that the questions of law should be answered as follows:

(a) Question one – yes, the Authority erred in its reasoning; (b) Question two – no.

(c) Question three – yes.

[6] Crown Law proposed that the Court be requested to remit the matter to the Authority and direct that the appeal be determined on the papers and that the hearing be vacated. The appellant did not accept that proposal and hence the appeal proceeded to hearing.

[7] I consider there is force in the respondent’s submission that, had the appellant accepted the proposal, the same outcome would have been achieved as arose out of the hearing with the matter being remitted back to the Authority.

[8] For those two reasons the appellant’s application for costs is declined. Costs will lie where they fall.

_{Brown J}

Solicitors:

Crown Law, Wellington