VAN UDEN v THE COMMISSIONER OF INLAND REVENUE [2017] NZHC 3058

VAN UDEN v THE COMMISSIONER OF INLAND REVENUE [2017] NZHC 3058 [11 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-000464[2017] NZHC 3058BETWEEN GERARDUS PETER VAN UDENAppellantAND THE COMMISSIONER OF INLANDREVENUERespondentHearing: (on the papers)Counsel: M Hinde for AppellantS J Leslie and R Soni for RespondentJudgment: 11 December 2017COSTS JUDGMENT OF VENNING JThis judgment was delivered by me on 11 December 2017 at 11.30 am, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors: Vlatkovich & McGowan, AucklandCrown Law, WellingtonCopy to: M Hinde, Auckland[1] In the judgment delivered on 19 October 2017 the Court directed costs were tofollow the event noting the Commissioner was entitled to costs on a 2B basis.[2] Mrs Hinde has raised two issues in relation to costs. First Mrs Hinde argues inreliance on the authority of Hudson v Attorney-General1 that the Commissioner is notentitled to actual costs (which are less than 2B costs) as she is not entitled to indemnitycosts. None of the criteria for awarding indemnity costs under r 14.6(4) apply.[3] The Commissioner says that Mrs Hinde also suggested that as the Court didnot reserve the issue of disbursements the Commissioner was not entitled todisbursements.[4] The case of Hudson can be distinguished and confined to its own particularfacts.[5] High Court Rule 14.2(f) is applicable in the circumstances where scale costsare appropriate but actual costs are less than scale costs. The order of the Court in thiscase was for costs to scale. Scale costs amount to $13,157. In fact the Commissionerhas advised her actual costs incurred were $12,300. In those circumstances the effectof HCR 14.2(f) is that the costs award should not exceed the $12,300 actually incurred.That is the appropriate order for costs.[6] As to disbursements, although the Court did not directly reserve the issue ofdisbursements, r 14.12(2) confirms that disbursements are effectively included in thecosts award. In this case I accept the submissions for the Commissioner that it wasappropriate for her to use Wellington based trial counsel to conduct the appeal. Therewere efficiencies in doing so which were reflected in the costs claimed. TheCommissioner is entitled to disbursements which, if counsel cannot agree, are to befixed by the Registrar.1 Hudson v Attorney-General [2017] NZHC 2790.[7] In summary the final order of the Court is that the Commissioner is to havecosts of $12,300 together with disbursements to be fixed by the Registrar.__________________________Venning J