THE COMMISSIONER OF NEW ZEALAND POLICE v TAMIHANA [2023] NZHC 1415

THE COMMISSIONER OF NEW ZEALAND POLICE v TAMIHANA [2023] NZHC 1415 [8 June 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2017-441-000101[2023] NZHC 1415UNDER THE Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF An application under r 14.2BETWEEN THE COMMISSIONER OF NEWZEALAND POLICEApplicantAND SHANE TAMIHANARespondentAND MICHAEL HOWARD ALLISONFirst Interested PartyAND CREDIT UNION BAYWIDESecond Interested PartyJudgment on thepapers:8 June 2023COSTS JUDGMENT OF GENDALL J[1] The applicant Commissioner has applied for costs against the first interestedparty, Michael Howard Allison (Mr Allison) of $8,932.31 in respect of hisunsuccessful opposition to the order for forfeiture made by this Court on 6 May 2022.[2] On 12 October 2017 the Commissioner was granted a without noticerestraining order over a variety of property said to have been tainted by the criminalactivity of the first respondent, Shane Tamihana (Mr Tamihana). That included theresidential property of 3 Whitby Place, Flaxmere, a property that had been purchasedin the name of Mr Allison, but was alleged by the Commissioner to have been underthe effective control of Mr Tamihana (in that the purchase was funded by him andcarried out on his behalf). An on notice application to the same effect was filed on18 October 2017.[3] On 16 July 2018 counsel for Mr Allison appeared at a teleconference beforethis Court. Counsel indicated that restraint (and forfeiture) would be opposed, asMr Allison disputed that Mr Tamihana was the beneficial owner of 3 Whitby Place,and claimed that he was the sole and true owner of the property.[4] The Commissioner then advised Mr Allison by way of a letter to his counseldated 1 August 2018, that costs would be sought should this opposition beunsuccessfully pursued.[5] All other parties to the proceeding did not oppose restraint or forfeiture.[6] The Commissioner maintains he incurred substantial costs in rebuttingMr Allison's claim, including the costs of a full day hearing in the Napier High Courton 5 October 2020.[7] Then, on about 6 May 2022, in this Court, I found against Mr Allison, rulingthat Mr Tamihana was the beneficial owner of the 3 Whitby Place property andgranting the forfeiture application.[8] The Commissioner as I note now seeks costs against Mr Allison on hisunsuccessful opposition to the order for forfeiture.[9] Mr Allison has been served with all material relating to this proceeding. Thisincludes the present application for costs served through his then counsel on the dateof filing (16 December 2023). This followed attempts to settle the issue conveyed incorrespondence between counsel in July and September of 2022. Counsel forMr Allison then indicated in December that he had not had contact from his client forsome time.[10] On 23 December 2022 Mr Allison was then personally served with the costsapplication along with a notice of the first call of the proceedings. An affidavit ofservice confirming this is before the Court. No response of any kind has come fromMr Allison or anyone else on his behalf.[11] I am satisfied Mr Allison has had notice of the present costs application andhas had adequate opportunity to respond on the issue but has not done so.[12] Rule 14.1 of the High Court Rules 2016 confirms that all issues of costs are atthe discretion of the Court. However, as McGechan on Procedure notes at R 14.2.01,the primary principle is that "costs follow the event" generally meaning theunsuccessful party will pay the costs of the successful party. On this, Rule 14.2relevantly reads as follows:14.2 Principles applying to determination of costs(1) The following general principles apply to the determination of costs:(a) the party who fails with respect to a proceeding or an interlocutoryapplication should pay costs to the party who succeeds:(b) an award of costs should reflect the complexity and significanceof the proceeding:(c) costs should be assessed by applying the appropriate dailyrecovery rate to the time considered reasonable for each stepreasonably required in relation to the proceeding or interlocutoryapplication:(d) an appropriate daily recovery rate should normally be two-thirdsof the daily rate considered reasonable in relation to the proceeding orinterlocutory application:(e) what is an appropriate daily recovery rate and what is a reasonabletime should not depend on the skill or experience of the solicitor orcounsel involved or on the time actually spent by the solicitor orcounsel involved or on the costs actually incurred by the partyclaiming costs:(f) an award of costs should not exceed the costs incurred by the partyclaiming costs:(g) so far as possible the determination of costs should be predictableand expeditious.[13] Clearly the Commissioner has succeeded in this proceeding against theunsuccessful opposition Mr Allison attempted to mount. He seeks costs on a(significantly reduced) category 2B scale basis here.[14] The Commissioner maintains that, in accordance with the allowances set outin Schedule 3 for proceedings such as this, the total quantum of category 2B costsavailable to be claimed based purely on the steps occasioned by Mr Allison'sunsuccessful opposition would be $19,837.[15] Acknowledging however that the costs claimed must not exceed those actuallyincurred, the actual total cost the Commissioner says he has incurred for legal servicesrelated to Mr Allison's opposition to the forfeiture application has been $8,932.31. Itis this sum for which the Commissioner seeks reimbursement here.[16] The Commissioner says also that since Mr Allison's opposition was declined,he has attempted to settle the issue of costs directly with Mr Allison, to no effect.[17] Accordingly, given first, that the reduced $8,932.31 costs sought here by theCommissioner are entirely reasonable in my view, bearing in mind the muchlarger sum that Mr Allison is ordinarily liable for such in accordance with theHigh Court Rules, and secondly, that Mr Allison has not provided any reason why suchcosts liability for this sum should not result, and thirdly, that he has not otherwisesought to participate in any way with respect to the present application, I determinehere that the Commissioner is entitled to an award of costs against Mr Allison for thisproceeding in the sum of $8,932.31.[18] An order to this effect is now made.Gendall J