HALL V TE HEUHEU AND ORS HC ROT CIV-2008-463-449

HALL V TE HEUHEU AND ORS HC ROT CIV-2008-463-449 19 April 2010IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CIV-2008-463-449UNDER s 72 District Courts Act 1947 BETWEEN DONNA MARIE TAI TOKERAU HALL Appellant AND TUMU TE HEUHEU, WHATARANGI WINIATA, HAMILTON PIHOPA KINGI, GRAEME VERCOE, PIRIHIRA FENWICK, ANN CLARKE, RANGIUIRA BRIGGS, GRAHAM UDALL FRANCE, NEPIA WILLIAMS RespondentsCIV-2008-463-497AND UNDER the Judicature Amendment Act 1972 BETWEEN DONNA MARIE TAI TOKERAU HALL Applicant AND THE DISTRICT COURT OF ROTORUA First Respondent AND TUMU TE HEUHEU, WHATARANGI WINIATA, HAMILTON PIHOPA KINGI, GRAEME VERCOE, PIRIHIRA FENWICK, ANN CLARKE, RANGIUIRA BRIGGS, GRAHAM UDALL FRANCE, NEPIA WILLIAMS Second Respondents Hearing: On the Papers Counsel: H M Aikman QC and M Taylor for Appellant/Applicant C D Batt for Respondents Tumu Te Heuheu, Rangiuira Briggs and Nepia Williams2 Judgment: 19 April 2010JUDGMENT (No.2) OF COOPER J ON COSTSThis judgment was delivered by Justice Cooper on 19 April 2010 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Gill & McAsey, PO Box 30 713, Lower Hutt, Wellington Tripe Matthews & Feist, PO Box 5003, Wellington Kiely Thompson Caisley, PO Box 3, Wellington Alan Cressey, PO Box 35054, Lower Hutt, Wellington Copy to: H M Aikman QC, PO Box 1530, Wellington 6140 M Taylor, PO Box 9220, Wellington B A Corkill QC, PO Box 5606, Wellington Whatarangi Winiata, 22 Te Manuao Road, Otaki (06 364 6513) Ann Clarke, 791 State Highway 1, RD 2, Taupo (07 378 0129)[1] I delivered judgment in respect of these proceedings on 28 April 2009. At [163] of the judgment I reserved all issues concerning costs. I directed that if there were issues as to costs that could not be resolved between the parties I would receive memoranda within 15 working days. [2] In a memorandum dated 7 December 2009 counsel for the respondents in the appeal under the District Courts Act has sought costs. That application is opposed by counsel for the appellant. In their memorandum of 10 December 2009, Ms Aikman QC and Mr Taylor point out that the current application was received more than six months after the three week deadline for filing of memoranda. [3] That assumes that Ms Batt's memorandum was filed with the Court on or about its date of 7 December 2009. However, the Rotorua Registry of the Court did not receive the memorandum until 9 April 2010 and the file was forwarded to me by the Registry shortly after that. [4] I understand that there had been issues between the parties concerning costs of the proceedings in the District Court and those issues have recently been resolved by Simon France J in a judgment delivered on 16 April 2010. Possibly, there has been some confusion as to the Registry of the Court in which the present application should have been advanced, and it may be that the present application was lodged in the Court's Wellington Registry as a consequence. But this is speculation. In all the circumstances, I consider that the safest course to follow is to assume, in favour of the present applicants for costs that the memorandum was intended to be filed in the Registry of the High Court at Rotorua on or about 7 December 2009. It was evidently received by counsel for Ms Hall shortly thereafter. [5] In her memorandum, Ms Batt refers to the Court's direction that in the event of disagreement as to costs memoranda were to be filed within 15 working days of the judgment. Counsel says, simply:3. This direction has been overlooked and Counsel apologises for the delay in filing a Costs Memorandum.4. Agreement has not been reached with the Appellant in relation to the costs of the appeal.[6] The costs sought, which appear to be confined to the appeal proceeding (CIV-2008-463-449) total $7,930.30. [7] In response, counsel for Ms Hall note that, within the period that I had limited for filing memoranda there was a discussion between Mr Taylor and Ms Batt concerning costs. The memorandum records a suggestion by Mr Taylor that as both parties were partly successful, costs should lie where they fell. The memorandum indicates that although Ms Batt did not agree with the proposal at the time, it was assumed that it had been reluctantly accepted, as nothing further was heard. [8] In view of the terms of my order, an extension of time under r 1.19(1) would be necessary for Ms Batt's December memorandum to be accepted, whenever it was filed. In order for an extension to be granted, a proper foundation should be laid. 1[9] In the context of the present case, I do not regard the bald assertion that the direction had been overlooked as laying a sufficient foundation. While it is a general principle that a party who fails in a proceeding should pay costs to the party who succeeds (r14.2(a)), all costs are at the discretion of the Court (r 14.1(1)) and r 14.2(g) provides the following general principle: so far as possible the determination of costs should be predictable and expeditious.[10] It was plain from the record of proceedings in the District Court, as well as from the tenor of some of the submissions addressed to me, that this was litigation which evoked strong feelings. In a case such as that, the principle that costs should be expeditious is even more important and in the general run of cases. In the circumstances of this case, I take the view that something more than the bald statement that the matter had been overlooked would be necessary before the Court should entertain an application made such a long time after the date when it should have been made.1 Day v Ost (No.2) [1974] 1 NZLR 714; Spicers Paper (NZ) Ltd v B P K & G A Buckley Ltd (1993) 6 PRNZ 16.[11] Consequently, the application for costs is dismissed.