Harvey v Tasman District Council [2019] NZHC 2492 (1 October 2019)

Last Updated: 17 October 2019

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-27 [2019] NZHC 2492

IN THE MATTER	of an appeal from a civil decision of a District Court Judge to a Judge of the High Court
BETWEEN	MICHAEL HENRY HARVEY Appellant
AND	TASMAN DISTRICT COUNCIL Respondent

On the papers:
Counsel:	M H Harvey in Person A G Stallard for Respondent
Judgment:	1 October 2019

JUDGMENT OF CHURCHMAN J (COSTS)

[1] By way of judgment dated 16 August 2019, I dismissed the appeal by the appellant in this matter and invited the parties to agree costs. In the absence of agreement, the respondent had 14 days to file submissions with the appellant having 14 days to reply.

[2] Unfortunately, agreement was not possible.

[3] By memorandum dated 21 August 2019, Mr Stallard, for the respondent, sought costs totalling $9,560. The respondent calculated costs on a band B, Schedule 2 basis. That is the classification for matters taking a normal amount of time and being of average complexity. It was submitted that these proceedings were not a simple debt recovery matter which might have been suitable for a band A allocation but, given the

HARVEY v TASMAN DISTRICT COUNCIL (COSTS) [2019] NZHC 2492 [1 October 2019]

issues raised on appeal, including the inter-relationship between the Resource Management Act, the Local Government Act, and the General Law of Contract/Assumption of Liability, band B, Schedule 2 costs were appropriate.

[4] By way of memorandum dated 5 September 2019 filed by the appellant in person, Mr Harvey submitted that no costs award should be made against him.

[5] A number of factors were advanced as justifying such an approach:

(a) alleged errors of fact in the judgment;

(b) inadequacies of his counsel at hearing;

(c) a rehearsal of the arguments advanced in the substantive hearing in relation to the deficiencies in the respondent’s accounting practices and lack of transparency; and

(d) what was described as “retribution” against the appellant because he challenged the Council’s accounting and the legal validity of their invoices.

[6] Mr Harvey also referred to the fact that the costs that he had incurred to date without even considering the costs in relation to his appeal were significantly greater than the actual sum in issue.

Analysis

[7] The principles in relation to costs are set out in r 14.2 of the High Court Rules 2016 (HCR). They proceed on the basis that costs follow the event. In other words, there is a general principle that a party who fails in respect of a proceeding such as an appeal should pay costs to the other party. The award of costs should reflect the complexity and significance of the proceedings, and costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the appeal.
[8] HCR 14.2 also provides that, so far as possible, the determination of costs should be predictable and expeditious.

[9] Notwithstanding these general principles, it is clear that the Court has a discretion to modify costs award where the circumstances require that in the interests of justice.

[10] The appellant here primarily relies on events that occurred before proceedings were issued in support of his claim that there should not be a costs award against him. This submission conflicts with the principle that generally costs award reflect how parties have acted during litigation and not before it.¹

[11] The appellant argues that these proceedings should have been commenced in the Disputes Tribunal. That matter may potentially have been relevant to costs in the District Court but is not relevant to costs in the High Court. It was the appellant who chose to appeal the District Court decision and the respondent had no influence over whether or not the appeal was heard by the High Court.

[12] In the absence of reasons that would justify departing from the standard costs provisions as set out in HCR 14.2, the Court is obliged to apply them.

[13] The costs sought by the respondent have been calculated in accordance with the principles set out in HCR 14.2(1). The daily recovery rate sought is appropriate to the subject matter, complexity and significance of the proceeding.

[14] Accordingly, costs are awarded to the respondent in the sum of $9,560.

Churchman J

Solicitors:

The Legal House, Auckland for Appellant Stallard Law Limited, Nelson for Respondent Counsel:

S A Keall, Barrister, Auckland for Appellant

1. See Paper Reclaim Ltd v Aotearoa International Ltd [2006] NZCA 27; [2006] 3 NZLR 188 at [160] and Moodie v Strachan [2015] NZHC 327 at [18].