HAYWARD v COMMISSIONER OF POLICE CA468/2013 [2015] NZCA 66

HAYWARD v COMMISSIONER OF POLICE CA468/2013 [2015] NZCA 66 [12 March 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA468/2013[2015] NZCA 66BETWEEN JENE CHE TEWANA HAYWARDAppellantAND COMMISSIONER OF POLICERespondentCourt: Randerson, White and Courtney JJCounsel: C F L Godinet for AppellantM R Harborow and R K Thomson for RespondentJudgment:(On the papers)12 March 2015 at 10:00 amJUDGMENT (NO 2) OF THE COURT ON COSTSA The appellant must pay costs to the respondent for a standard appeal on a band A basis with usual disbursements.B The judgment of 18 December 2014 ([2014] NZCA 624) otherwise remains unaffected.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)[1] On 20 November 2014 we heard two related appeals under the Criminal Proceeds (Recovery) Act 2009. The appellants in each appeal were Mr and Mrs Hayward respectively. On 18 December 2014 we issued simultaneousjudgments in respect of each appeal. We allowed Mrs Hayward's appeal and orderedthe respondent to pay her costs for a standard appeal on a band A basis together withusual disbursements.1 We dismissed Mr Hayward's appeal but we overlookedmaking any award of costs.2[2] Mr Harborow for the Commissioner of Police as respondent has filed amemorandum drawing our attention to the fact that the Commissioner's application for costs was not addressed by the Court's judgment. The Commissioner submittedthere was no reason why costs should not follow the event. Counsel submitted thatthe bulk of Mr Hayward's appeal centred around findings of fact made by theHigh Court Judge. It was submitted these points were unmeritorious and required a significant level of preparation by the respondent.[3] In response, Mr Godinet for Mr Hayward submitted that the appeal was not solely based on the findings of fact in the High Court. There was a further ground of appeal based on an alleged failure by the Commissioner to particularise the significant criminal activity involved and whether there had been compliance with s 52 of the Act.[4] Mr Godinet also submitted that, as he recalled, the Court determined there would be only one set of costs on a band A basis and that all counsel agreed to that course. He submitted that in the circumstances the Commissioner was precluded from asking for a reassessment of costs.Decision[5] The Commissioner filed one set of submissions for both appeals and sought costs for a standard appeal on a band A basis plus usual disbursements. We assume that the Commissioner sought only one set of costs simply on the hypothesis that both appeals would be dismissed and that both would be heard together. As it happened, Mrs Hayward's appeal was successful but Mr Hayward's was not. Weaccept that the Commissioner was put to substantial cost on the appeal against theforfeiture orders. Although Mr Godinet's role in the hearing was relatively limitedand counsel for Mrs Hayward, Mr Gay, presented argument on behalf of both Mr and Mrs Hayward, it was necessary for the Crown to respond on Mr Hayward's appeal1 Hayward v Commissioner of Police [2014] NZCA 625.2 Hayward v Commissioner of Police [2014] NZCA 624.not only to the particulars issue but also to the extensive factual challenges advanced on behalf of the appellant.[6] We are not satisfied that any agreement by the Crown to seek only one set ofcosts applies in the circumstances that have occurred. Mr Hayward's appeal waswholly unsuccessful and we see no reason why costs should not follow the event in that appeal.[7] Accordingly:(a) The appellant must pay the respondent costs for a standard appeal on a band A basis with usual disbursements.(b) The judgment of 18 December 2014 ([2014] NZCA 624) otherwise remains unaffected.Solicitors:Jespersen & Associates, Auckland for AppellantMeredith Connell, Auckland for Respondent