PALMER V COMMISSIONER OF INLAND REVENUE HC AK CIV 2006-404-2071

PALMER V COMMISSIONER OF INLAND REVENUE HC AK CIV 2006-404-2071 18 September 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-2071IN THE MATTER OF Pursuant to s 72 of the District Courts Act 1947 BETWEEN GRAHAM ASHLEY ROBERT PALMER Appellant AND COMMISSIONER OF INLAND REVENUE Respondent Hearing: 15 September 2006 Counsel: Appellant in person R J Willox for Respondent Judgment: 18 September 2006 at 12 pmCOSTS JUDGMENT OF WINKELMANN JThis judgment was delivered by Justice Winkelmann on 18 September 2006 at 12 pm pursuant to Rule540(4) of the High Court Rules.Registrar/ Deputy Registrar Date:Solicitors Crown Solicitor, Auckland (R J Wilcox) GAR Palmer, PO Box 5419, Wellesley St, Auckland[1] Mr Palmer has abandoned this appeal, and the respondent has sought costs on the now abandoned appeal. Counsel for the respondent has addended a calculation of schedule costs on a 2B basis and on that basis calculates costs in the amount of $2,240. Counsel however submits that because schedule costs exceed actual costs, actual costs in the sum of $766.67 are appropriate. [2] Mr Palmer opposes the award of costs. He says firstly, that the issues underlying the appeal remain extant and are the subject of District Court proceedings and that his claim has merit. He alleges that counsel for the respondent failed to advise the Court of a relevant authority and that knowledge of that authority alters the whole aspect of the case. Finally, Mr Palmer submits that the wrongs he alleges were committed by the respondent (which underlie both the District Court proceedings and this appeal) have caused extreme financial hardship for the appellant and:The respondent should not be allowed to benefit from a decision born of malice and predisposition.[3] Mr Palmer submits that in all previous applications in terms of costs, orders have been made for costs to follow the event. The respondent has shown no good reason why that judgment should be varied. [4] As Mr Palmer elected to abandon his appeal, I do not propose to enter into the merits of the underlying substance of that appeal. Rule 712(2) provides that if the appellant abandons the appeal, then the appeal is taken to have been dismissed subject to the right of the respondent to apply for an order as to costs. [5] Prior to the abandonment the respondent was put to the cost and expense of two appearances at directions conferences and the preparation of two memoranda. In those circumstances the respondent is entitled to an award of costs. [6] Counsel for the respondent's calculation of the scale costs is inaccurate. I refer counsel to items 14 & 15 in the third schedule which provide the scale time applicable to the relevant steps in civil appeals. However, even if that scale isapplied, the scale costs still substantially exceed actual costs at the Crown rate of $766.76. [7] Actual costs being $766.76, an appropriate award of costs is in the sum of $500. That is a reasonable contribution to the respondent's costs. It is the underlying philosophy of the costs regime in the High Court Rules that other than in exceptional circumstances the successful party is entitled to a reasonable contribution towards costs only, not indemnity costs. Winkelmann J