IRWIN v MULES [2021] NZHC 1457

IRWIN v MULES [2021] NZHC 1457 [18 June 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2019-470-000115[2021] NZHC 1457UNDER the District Court Act 2000IN THE MATTER of an appeal against a decision of JudgeCameron in the District Court at Taurangadated 11 October 2019BETWEEN BRETT RAYMOND IRWINAppellantAND PHILLIPA JANE MULESFirst RespondentAND ROSS FITCHESSecond RespondentOn the papers:Judgment: 18 June 2021JUDGMENT OF HINTON J[Re Costs]This judgment was delivered by me on 18 June 2021 at 3:00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:R Mark, Barrister & Solicitor, KerikeriStace Hammond Lawyers, HamiltonD Hayes, Barrister, Hamilton[1] Following a hearing in February 2020, on 20 April 2020 I gave judgmentallowing in part Mr Irwin's appeal against a decision of Judge Cameron dated11 October 2018.1 In summary, I found that Ms Mules and Mr Fitches were liable toMr Irwin in conversion, and that Ms Mules was liable to Mr Irwin in detinue. I enteredjudgment for Mr Irwin accordingly.2 I made no finding in respect of damages andremitted that issue to the District Court as it raised a number of points not capable ofresolution on the appeal.3[2] Judge Cameron's decision of 11 October 2018 was his second in this matter.He had given an earlier decision in Mr Fitches' favour on 20 July 2018,4 but reversedthat in his second judgment and gave judgment in the respondents favour instead. Asa consequence, in the hearing before me Ms Mules did not pursue an appeal she hadfiled against Judge Cameron's first decision.[3] In my judgment I expressed the preliminary view that Mr Irwin, havingsucceeded on liability against both respondents, would presumptively be entitled tocosts on a 2B basis plus disbursements.5 I reserved leave to counsel to file and servememoranda in respect of costs. They did so some months ago and there have beenregrettable delays since both in transmission of memoranda and otherwise.[4] Counsel for Mr Irwin, Mr Mark, submits my preliminary view was correct, andthat Mr Irwin should receive costs in this Court on a 2B basis in respect of bothappeals, together with disbursements, in the total amount of $21,735.64. In arrivingat this figure, Mr Mark has properly acknowledged the duplication of work betweenthe two appeals and so has limited the claim in respect of Ms Mules' appeal to costsfor the response to that appeal and for attendance at one case management conferencespecific to that appeal.1 Irwin v Mules [2018] NZDC 20003.2 Irwin v Mules [2020] NZHC 478 at [45] and [53].3 At [46]-[50].4 Irwin v Mules [2018] NZDC 11829.5 Irwin v Mules [2020] NZHC 478 at [55].[5] For the respondents, Mr Hayes submits that costs should lie where they fall onthe basis that costs follow the event,6 and properly considered, Mr Irwin's success onthe question of liability amounts to no success at all, given Mr Irwin is seeking not adeclaration of liability but rather damages. The question of damages having insteadbeen remitted, Mr Hayes submits Mr Irwin's victory in this Court is "pyrrhic" at best.[6] As to the substance of Mr Hayes' submission, in keeping with the precept thatthe award of costs should be predictable and expeditious,7 a robust view is to be takenof success and failure, and success on more limited terms is still success.8 As follows,while one party being adjudged liable to pay the other money is a clear sign the partyto whom money is to be paid is the victor,9 the fact no such order has been made heredoes not mean Mr Irwin did not succeed. Rather, the key point is that Mr Irwinsucceeded on liability, being the points on which I arrived at a conclusion beforeremitting the further points as to damages which the parties agreed were unable to bedetermined by me on the appeal. Mr Irwin therefore made important progress towardsachieving his overall goal in the proceeding and clearly succeeded on all of the pointsin respect of which I made a determination. The respondents could have acceptedliability and the present issue as to costs would not have arisen. They did not and costsare properly payable.[7] For these reasons, I order that the respondents are to pay Mr Irwin's costs inthis Court on a 2B basis and disbursements in the total amount of $21,735.64.10Hinton J6 High Court Rules 2016, r 14.2(1)(a). See, for example, Shirley v Wairarapa District Health Board[2006] NZSC 63, [2006] 3 NZLR 523 at [19].7 High Court Rules 2016, r 14.2(1)(g).8 Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [20] and [26], affirmedMidgen Enterprises Ltd v UV Water Systems Ltd [2017] NZSC 68.9 UV Water Systems Ltd v Midgen Enterprises Ltd [2017] NZCA 36.10 Which liability, I note, is joint and several: High Court Rules 2016, r 14.14.