WILKINS v HOUSING NZ [2014] NZHC 833

WILKINS v HOUSING NZ [2014] NZHC 833 [28 April 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-004885[2014] NZHC 833UNDER the Judicature Amendment Act 1972BETWEEN ALLAN KENITH WILKINSApplicantAND HOUSING NEW ZEALANDCORPORATIONRespondentHearing: On the papers.Judgment: 28 April 2014JUDGMENT OF ANDREWS J[Costs]This judgment is delivered by me on 28 April 2014 at 12pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarIntroduction[1] In my judgment in this proceeding delivered on 19 March 2014 I struck outMr 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 forprosecution, a "plea bargain arrangement" entered into in respect of charges laid against Mr Wilkins, and HNZ's decision to pursue a civil recovery action againstMr 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, andthat scale costs should be calculated on a 2B basis. HNZ's costs calculated on a2B 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 otherproceedings, an abuse of the Court's process, and undertaken with the clear purpose of delaying HNZ's bankruptcy proceedings against Mr Wilkins. Ms Cuncannonsubmitted 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 lodged1 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 particularconsiderations dictate otherwise.2 There is nothing in Mr Wilkins' submissions thatpersuades 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. InReid 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 aslim 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 whenlodging the application for judicial review. He was wrong in those beliefs in respect3 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 orderedto 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