GRANT v RESTRUCTURING INSOLVENCY & TURNAROUND ASSOCIATION NEW ZEALAND INCORPORATED [2021] NZHC 801

GRANT v RESTRUCTURING INSOLVENCY & TURNAROUND ASSOCIATION NEW ZEALANDINCORPORATED [2021] NZHC 801 [14 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1367[2021] NZHC 801UNDER The Judicial Review Procedure Act 2016Part 30 of the High Court Rules 2016BETWEEN DAMIEN MITCHELL GRANTApplicantAND RESTRUCTURING INSOLVENCY &TURNAROUND ASSOCIATION NEWZEALAND INCORPORATEDRespondentHearing: On the papersCounsel: R J Hollyman QC, J K Grimmer and N G Lawrence for theApplicantS M Hunter QC and R M Stewart for the RespondentJudgment: 14 April 2021JUDGMENT OF MUIR J(Costs)This judgment was delivered by me on Wednesday 14 April 2021 at 4.30 pmPursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar Date:Counsel:R J Hollyman QC, AucklandJ K Grimmer, AucklandN G Lawrence, AucklandS M Hunter QC, AucklandSolicitors:Waterstone Insolvency, AucklandFee Langstone, AucklandIntroduction[1] In my judgment dated 3 November 2020 I noted that I had not been addressedon costs but that (provisionally) I considered these appropriately payable to Mr Granton a 2B basis.1 I invited memoranda in the event the parties were unable to resolvetheir differences. Such memoranda are now to hand.[2] In respect of costs, the parties are substantially agreed but differ in respect ofan allowance for second counsel ($1,195.00) and the applicant's claim for preparationof a memorandum relating to a media application by Ms Victoria Young ofBusinessDesk ($956.00).[3] In respect of disbursements, the respondent opposes the applicant's claim forthe costs associated with professional evidence by Dr Ian Goodwin and Mr BruceSheppard.[4] I deal with each of these issues in turn.Second counsel[5] Mr Grant says that the case involved an urgent one day judicial reviewproceeding with a significant volume of evidence. He says that second counsel wasnecessary for the efficient and effective conduct of the hearing and notes that therespondent also appeared with supporting counsel.[6] Allowance for second counsel is not automatic. The key question is "whetherthe nature of the proceeding was such as to justify requiring the losing party tocontribute to the winning party's costs in having a junior counsel present".2[7] In ZYXCBA Developments Ltd v Auckland Council, I noted:3I do not, having regard to the decision in Nomoi Holdings Ltd,4 regard thereas being anything so atypical about this litigation as to warrant an allowance1 Grant v Restructuring Insolvency & Turnaround Assoc of New Zealand Inc [2020] NZHC 2876 at[106].2 SKP Inc v Auckland Council [2020] NZHC 2215 at [5].3 ZYXCBA Developments Ltd v Auckland Council [2015] NZHC 2224 at [16].4 Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 (HC) at [21].for second counsel. It was conducted on sworn affidavits with reasonablylimited cross-examination and was fundamentally a legal argument based (inlarge measure) on uncontentious facts. The case is not in my view onewhere the analogy with "former trial practice" referred to by Chambers J inNomoi Holdings is sufficiently strong to warrant allowance for secondcounsel.[8] I regard this case as being in the same category. Although Mr Grant'sapplication referenced a significant amount of material, it was conducted on swornaffidavits with no cross-examination and was completed within one day. Essentiallyit involved a legal argument on substantially agreed facts.[9] I do not regard the proceedings as having any sufficiently unusual features towarrant allowance for second counsel.[10] I disallow this item accordingly.Preparation of memorandum on media application[11] Mr Grant seeks an allowance of $956.00 by analogy with step 10 (preparationfor first case management conference) in respect of a memorandum filed in responseto Ms Young's application for access to the court file.[12] In respect of that application RITANZ did not object to access to the pleadingsand various memoranda and minutes relating to timetable directions. It did, however,object to the provision of affidavits (and associated memoranda) where admissibilityof those affidavits was in issue.[13] In response to RITANZ's memorandum Mr Grant submitted (with one limitedexception) that access to the court file be on the basis BusinessDesk proposed.[14] In a detailed minute dated 9 October 2020, Davison J accepted RITANZ'ssubmission and granted limited access to the court file on the terms it suggested.[15] The claim is in respect of a matter not provided for in sch 3 to the High CourtRules 2016. Nor did the memorandum relate to the proceeding as such. I accept,however, that r 14.1(1) allows for costs not only "of" a proceeding but "incidental" toa proceeding. Something is "incidental" if it is "not essential following as asubordinate event".5 This is a broad definition which must be considered to captureancillary matters such as that in issue.[16] However, in my view the corollary is that the costs implications of any suchancillary matter should be approached, as best possible, by analogy with interlocutoryapplications. In that respect costs are typically decided on the basis of immediatesuccess and without reference to the ultimate result in the proceedings.[17] In the present case the applicant and respondent had divergent views. Thoseof the respondent ultimately prevailed. Its submission that costs should lie where theyfall in respect of this step in my view represents an appropriate exercise of the Court'sdiscretion under r 14.1(1).[18] Accordingly, I disallow this item also.Dr Goodwin's fees[19] Dr Ian Goodwin, who is a consultant psychiatrist, provided evidenceessentially directed to the likelihood of re-offending by Mr Grant. Admission of thatevidence (in addition to numerous further affidavits attesting to Mr Grant's character)was opposed by RITANZ on the primary basis that such information was not beforethe Committee when it made its decision on Mr Grant's application and was thereforeirrelevant to the exercise of this Court's powers on judicial review.[20] I admitted all such evidence de bene esse with the agreement of both partiesand on the basis that I would address the evidentiary issues as required in my reservedjudgment.65 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (OxfordUniversity Press, Melbourne, 2005) at 549.6 De bene esse in this context means to allow the evidence as acceptable at the time it was given,on the basis that, when later more fully examined, it may be allowed or disallowed, depending onthe merit of it.[21] In the final analysis I held that it was unnecessary for me to resolve any of theevidential challenges, because the proposed evidence was irrelevant to the approach Iadopted.[22] Rule 14.12(2)(c) provides that to be claimable a disbursement must be"reasonably necessary for the conduct of the proceeding".7[23] My assessment of the evidence is that its primary purpose was to supportMr Grant's submission that, in the event reviewable error was identified, this Courtshould make its own good character assessment with a view to orders admittingMr Grant to RITANZ membership. At [95]–[97] of my principal judgment I explainedthat only in rare and clear cases would this Court ever assume ultimate decision-making authority to this extent.8 I said that Mr Grant's application could never bedescribed in such terms. I concluded:9[97] As I said at the outset of this judgment the question of whetherMr Grant is admitted to membership is and always was a difficult one. It isfar from the clear-cut case the authorities require before the Court shouldsubstitute its own decision on the "headline" issue.[24] This disbursement therefore arises in the context of an aspect of Mr Grant'sclaim which was unsuccessful. I do not consider there to have ever been a sufficientlytenable argument for this Court to substitute its own assessment of good character suchthat Dr Goodwin's evidence could be considered "reasonably necessary for theconduct of the proceeding".[25] I decline therefore to allow the disbursement.Mr Sheppard's fees[26] Mr Sheppard's evidence was not prepared for the purposes of the proceedingswhich were before me. Mr Grant filed earlier proceedings for judicial review underCIV-2020-404-862 which were settled (with no issue as to costs) by RITANZ'sagreement to conduct a rehearing of his application. Mr Sheppard's evidence was7 High Court Rules 2016, r 14.12(2)(c).8 See Grant, above n 1, at [95]–[97].9 At [97].originally intituled in that proceeding. It was sworn on 22 July 2020 which was 12days after RITANZ's agreement to the rehearing. Mr Hollyman QC says it was swornfor the purposes of that rehearing.10 He is incorrect, however, in submitting that theevidence was "finalised after [the first judicial review] had been resolved".11 Suchresolution occurred on 28 July 2020 when a Notice of Discontinuance was filed.[27] In my view Mr Sheppard's fees are unrecoverable as a disbursement in thisproceeding. They were either potentially recoverable as a disbursement in theprevious proceedings (which were however resolved without an award of costs) orthey must be considered part of the cost of the rehearing (as opposed to the judicialreview proceedings brought in respect of the rehearing result).[28] I decline this disbursement accordingly.Result[29] I award costs and disbursements against the respondent and in favour of theapplicant in the amount of $23,731.00 as calculated in the schedule annexed hereto.__________________________Muir J10 Applicant's reply memorandum as to costs dated 12 April 2021 at [6].11 Applicant's memorandum as to costs dated 29 March 2021 at [11].ANNEXURECostsDisbursements