KA PAI KAITI TRUST v KAITI CLUB HOTEL LIMITED [2018] NZHC 1715

KA PAI KAITI TRUST v KAITI CLUB HOTEL LIMITED [2018] NZHC 1715 [13 July 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2018-485-00028[2018] NZHC 1715UNDER The Sale and Supply of Alcohol Act 2012(the Act)IN THE MATTER OF An appeal under Section 162 of the Actagainst a decision of the Alcohol Regulatoryand Licensing Authority to grant orderspursuant to Section 153(3) of the Actconcerning the "Kaiti Sports Bar"BETWEEN KA PAI KAITI TRUSTAppellantAND KAITI CLUB HOTEL LIMITEDRespondentHearing: On the papers at HamiltonJudgment: 13 July 2018JUDGMENT OF POWELL J[Costs on Appeal]This judgment was delivered by me on 13 July 2018 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:Te Mata Law Ltd, AucklandHarkness Henry, HamiltonCounsel:Dr G Hewison[1] By way of an oral judgment dated 7 June 2018 I dismissed the appeal for theappellant, Ka Pai Kaiti Trust ("the Trust").1 The Trust had appealed against a decisionof the Alcohol Regulatory and Licensing Authority granting a stay to the respondentKaiti Club Hotel Limited ("the Hotel") pending the hearing of its own appeal againstthe refusal of the Gisborne District Licensing Committee to renew its on-licence.[2] At the end of my judgment I noted:[12] The Hotel sought costs on the appeal. If these cannot be agreed withinone month of the delivery of this judgment I will determine the issue followingthe filing of memoranda. I would urge the Hotel to take into account thecircumstances that Mr Hewison noted at the outset, that the Trust is acommunity group and noting its reasons for bringing the appeal,notwithstanding, as will be clear from my judgment, that it did not have anyprospect of success.[3] Counsel have confirmed that no agreement has been reached and haverequested that costs now be fixed.[4] The Hotel seeks an order for payment of its actual costs incurred in the sum of$5,683.50, noting that the proceeding had been identified as a Category 2 proceedingand calculating that on a 2B basis, would have entitled the Hotel to $9,031.50, acalculation not challenged by the Trust. In contrast, the Trust opposes the quantum ofcosts sought and has submitted that while this is a situation where costs shouldappropriately lie where they fall, it concedes that as it had been advised by the Hotelthere was no merit to its appeal at the outset it should pay costs in the sum $1,155,being the amount it was required to pay for security for costs. In submitting that itshould not have to meet the Hotel's claimed costs the Trust relies on the followingmatters:(a) That the Trust is a not-for-profit community group trying to make thesuburb of Kaiti "an even better place to live".(b) The Trust brought the appeal in the public interest and considered theappeal was in the nature of a test case with regard to the scope ofs 153 of the Sale and Supply of Alcohol Act 2012.1 Ka Pai Kaiti Trust v Kaiti Club Hotel Limited [2018] NZHC 1332.(c) The Trust questioned the need for the Hotel to be represented by twocounsel; and(d) The Trust noted that the Hotel has had significant financial benefit as aresult of the stay being granted.Discussion[5] Having considered the submissions of the parties I am satisfied that thereshould be an order for costs in favour of the Hotel for the full amount claimed.[6] While I accept the Trust serves an important role in its community and it is anot-for-profit organisation, the fact is that this appeal had no prospect of success andto pursue it in those circumstances means that it must accept that costs would follow.The appeal was disposed of in terms of the existing law and was not in any sense a testcase, while the fact that the Hotel has been able to continue to trade as a result of thestay being granted is irrelevant to whether costs should be awarded on the unsuccessfulappeal.[7] The complaint about the Hotel utilising two counsel is also without merit. Notonly was the Trust also represented by two counsel in the hearing before me, but thefact that the total costs sought by the Hotel are only some 60 per cent of costs on a 2Bbasis shows that far, from being extravagant, the Hotel's solicitors were efficient inpreparing and presenting the Hotel's response in the appeal. As a result even allowingfor the community based nature of the Trust I am satisfied that the full amount of costssought are appropriately paid by the Trust on the appeal.Decision[8] The Trust is to pay the Hotel costs in the sum of $5,683.50._______________________________Powell J