CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATION CHARITABLE TRUST [2019] NZHC 3005
The Court held the proceeding was of average complexity requiring Category 2 costs and that Band B should apply; accordingly the plaintiff is entitled to costs jointly against both defendants on a Category 2B basis together with disbursements as sought.
Source-derived case information.
- Citation
- [2019] NZHC 3005
- Parties
- Plaintiff: Chief Executive of the Department of Internal Affairs; First Defendant: NZ Trustees Association Charitable Trust; Second Defendant: Errol Bruce Anderson
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 19 November 2019
- Procedural Posture
- Civil Penalty Proceeding Under the Unsolicited Electronic Messages Act 2007 / Costs Determination (post Judgment)
- Outcome
- Costs awarded to plaintiff on a Category 2, Band B basis jointly against both defendants with disbursements.
- Legal Topics
- Costs, Pecuniary Penalties, Enforceable Undertaking, Costs Categorisation (category 1 V Category 2), High Court Rules Costs Bands
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chief Executive of the Department of Internal Affairs
Plaintiff
NZ Trustees Association Charitable Trust
First Defendant
Errol Bruce Anderson
Second Defendant
Procedural Posture
Civil Penalty Proceeding Under the Unsolicited Electronic Messages Act 2007 / Costs Determination (post Judgment)
Legal Issues
- 1 Appropriate costs category for the proceeding (Category 1 v Category 2)
- 2 Appropriate costs band within Category 2
- 3 Whether to depart from the usual rule that the unsuccessful party pays costs
Ratio Decidendi
The Court held the proceeding was of average complexity requiring Category 2 costs and that Band B should apply; accordingly the plaintiff is entitled to costs jointly against both defendants on a Category 2B basis together with disbursements as sought.
Court Disposition
Costs awarded to plaintiff on a Category 2, Band B basis jointly against both defendants with disbursements.
Orders
- Costs awarded to plaintiff against the defendants jointly on a Category 2, Band B basis.
- Disbursements awarded to plaintiff as sought in counsel's memorandum dated 11 November 2019.
Full Case Text
Judgment text and source record
1 paragraphs
CHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS v NZ TRUSTEES ASSOCIATIONCHARITABLE TRUST [2019] NZHC 3005 [19 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-2464[2019] NZHC 3005BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF INTERNAL AFFAIRSPlaintiffAND NZ TRUSTEES ASSOCIATIONCHARITABLE TRUSTFirst DefendantERROL BRUCE ANDERSONSecond DefendantHearing: On the papersAppearances: P Parry for PlaintiffNo appearance for First DefendantSecond Defendant in personJudgment: 19 November 2019JUDGMENT OF LANG J[on costs]This judgment was delivered by me on 19 November 2019 at 9.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 21 October 2019, I delivered a judgment in which I ordered the twodefendants to pay pecuniary penalties under the Unsolicited Electronic Messages Act2007 (the Act) for sending unsolicited messages electronically to entities it consideredmight be interested in becoming members of the first defendant and utilising itsservices.1 I also made an order under s 35 of the Act requiring both defendants tocomply with their obligations under an enforceable undertaking dated 13 August 2018.[2] The parties have been unable to reach agreement regarding costs. It is nownecessary for me to determine that issue on the basis of the memoranda filed by bothparties.[3] The principal issue raised by the defendants is that the proceeding should notbe categorised as a Category 2 proceeding for costs purposes. They contend it was asimple case that justifies a Category 1 costs categorisation.[4] I disagree. Category 1 is reserved for cases of a straightforward nature that canbe conducted by junior counsel.2 Category 2 proceedings, on the other hand, areproceedings of average complexity requiring counsel of skill and experienceconsidered average in the High Court.3[5] I consider the present proceeding is plainly of average complexity that requiredcounsel of skill and experience considered average in the High Court. It was not of asufficiently straightforward nature that it could realistically be conducted by a counselconsidered junior in this Court. Costs are to be assessed on a Category 2 basis. I amalso satisfied that Band B is the appropriate band to be applied in relation to each stepin the proceeding.[6] The defendants raise several other arguments but none is relevant to the issueof costs. The primary principle that guides the exercise of the Court's discretion as tocosts is that the unsuccessful party should be required to contribute to the costs1 Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust[2019] NZHC 2684.2 High Court Rules 2016, r 14.3(1).3 Ibid.incurred by the successful party.4 I see no justification for departing from thatprinciple in the present case.[7] The plaintiff is accordingly entitled to costs jointly against both defendants ona Category 2B basis together with disbursements as sought in the memorandum ofcounsel for the plaintiff dated 11 November 2019.Lang JSolicitors:Meredith Connell, AucklandCopy to: Mr E B Anderson4 High Court Rules 2016, r 14.2(a).