FALOON v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 1296
The Court fixed costs against Mr Faloon on a category 2B basis for both the review and the strike out applications because the review proceeded as a rehearing of the strike out application, and the existence of other pending applications did not prevent the Court from fixing costs in the concluded proceedings.
Source-derived case information.
- Citation
- [2013] NZHC 1296
- Parties
- Plaintiff: Clarence John Faloon; Defendant: The Commissioner of Inland Revenue
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 4 June 2013
- Procedural Posture
- Civil Strike Out and Review Proceedings / Costs Determination
- Outcome
- Costs awarded to the Defendant (Commissioner of Inland Revenue)
- Legal Topics
- Strike Out, Abuse of Process, Indemnity Costs, Category 2 B Costs, Review Application
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clarence John Faloon
Plaintiff
The Commissioner of Inland Revenue
Defendant
Procedural Posture
Civil Strike Out and Review Proceedings / Costs Determination
Legal Issues
- 1 Whether costs should be awarded and on what basis
- 2 Whether the Commissioner is entitled to claim costs for the strike out application on the same 2B basis as the review application
- 3 Whether the Court had jurisdiction to hear the strike out application while another extraordinary remedy application was pending
Ratio Decidendi
The Court fixed costs against Mr Faloon on a category 2B basis for both the review and the strike out applications because the review proceeded as a rehearing of the strike out application, and the existence of other pending applications did not prevent the Court from fixing costs in the concluded proceedings.
Court Disposition
Costs awarded to the Defendant (Commissioner of Inland Revenue)
Orders
- Costs on the review application fixed on category 2B basis in the amount of $7,761.00 and disbursements $546.50
- Costs for the strike out application fixed on category 2B basis in the amount of $9,751.00 and disbursements $1,048.48
Full Case Text
Judgment text and source record
1 paragraphs
FALOON v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 1296 [4 June 2013]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCIV 2011-470-000878[2013] NZHC 1296BETWEEN CLARENCE JOHN FALOONPlaintiffAND THE COMMISSIONER OF INLANDREVENUEDefendantHearing: On the papersAppearances: C J Faloon in person the PlaintiffD Lemmon for the DefendantJudgment: 4 June 2013COSTS JUDGMENT OFASSOCIATE JUDGE CHRISTIANSENThis judgment was delivered by me on04.06.12 at 4:30pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 8 November 2011 I issued a judgment granting the Commissioner'sapplication to strike out a claim brought by Mr Faloon on the grounds that it was mischievous, frivolous, vexatious and an abuse of process.[2] At that time I invited submissions on the question of costs. I intimated indemnity costs would be considered. However, before these submissions were filed Mr Faloon filed an application for review of my judgment.[3] Mr Lemmon for the Commissioner submits that because the review application proceeded as a rehearing of the strike out application that it is reasonable to infer that the Commissioner should be entitled to claim costs for the strike out application on the same 2B basis the review Judge intimated ought be awarded on the review application.[4] Mr Lemmon has attached an itemised calculation of scale costs for both the strike out and the review applications.[5] In his response Mr Faloon submits that I "had no jurisdiction to hear theapplication [for strike out] in the presence of an application for an extraordinaryremedy in another proceeding of his which was then "properly before the Court for decision".[6] He further submits "as indemnity costs were awarded, and as the plaintiff isgiven 14 days to reply to any memorandum in relation to costs, [he] submits it is anerror of law for Crown Law to seek costs on a 2B basis...". The fact that Mr Fallonmay have yet another application before the Court does not prevent the Court from fixing costs in relation to a proceeding which has now been concluded.[7] Indemnity costs usually significantly exceed costs awarded on a 2B basis.Judgment[8] Costs against Mr Faloon are fixed on a category 2B basis as follows:(a) Upon the review application in the amount of $7,761.00 and disbursements in the amount of $546.50; and(b) For the strike out application in the amount of $9,751.00 and disbursements in the amount of $1,048.48.Associate Judge Christiansen