LINGUIS INTERNATIONAL INSTITUTE OF LANGUAGE AND CULTURE LIMITED v THE NEW ZEALAND QUALIFICATIONS AUTHORITY [2016] NZHC 1148

LINGUIS INTERNATIONAL INSTITUTE OF LANGUAGE AND CULTURE LIMITED v THE NEW ZEALAND QUALIFICATIONS AUTHORITY [2016] NZHC 1148 [31 May 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-158[2016] NZHC 1148BETWEEN LINGUIS INTERNATIONALINSTITUTE OF LANGUAGE ANDCULTURE LIMITEDPlaintiffAND THE NEW ZEALANDQUALIFICATIONS AUTHORITYDefendantHearing: On the papersAppearances: B O'Callahan and M Chen for plaintiffR Scott and M Cavanaugh for defendantJudgment: 31 May 2016JUDGMENT OF LANG J[on costs]This judgment was delivered by me on 31 May 2015 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 14 April 2016 I issued a judgment in which I granted the application by Linguis International Institute of Language and Culture Limited (Linguis) for judicial review of one conclusion reached by the New Zealand Qualifications Authority (the Authority) in its final report.1 The parties have been unable to reach agreement regarding costs, and I am therefore required to determine that issue.The argumentsThe Authority[2] In an amended statement of defence filed on 29 March 2016 the Authority acknowledged that the reconsideration process had gone awry.2 This formed the basis of the second ground of review pleaded by Linguis. For that reason the Authority now acknowledges that Linguis was justified in bringing its application for judicial review. It therefore accepts that Linguis should be entitled to recover the cost of commencing the proceeding and a portion of its costs in preparing affidavits.[3] The Authority points out that Linguis failed in relation to five of the six alleged errors of fact pleaded in its statement of claim. It therefore submits that Linguis should receive 20 per cent of scale costs for these two steps. The Authority contends, however, that Linguis should only be entitled to recover ten per cent of scale costs from the point at which the Authority served the amended statement of defence.[4] The Authority also argues that it should receive an award of costs calculated on a category 3C basis for the substantial time that it spent preparing affidavits. Almost all of these related to matters on which the Authority succeeded at trial. The Authority submits that the extent to which it succeeded at trial means that it should also recover 80 per cent of the costs of preparing for and appearing at the hearing.1 Linguis International Institute of Language and Culture Ltd v The New Zealand Qualifications Authority [2016] NZHC 691.2 See [19] of the judgment.[5] Ms Scott therefore calculates that Linguis would be entitled to recover the sum of $12,042.00, whilst the Authority would be entitled to recover the sum of $21,850.00. As a result, Linguis should be ordered to pay the Authority net costs in the sum of $8,123.00.[6] The Authority accepts that Linguis should be permitted to obtain reimbursement of its disbursements in the sum of $1,680.00, compared with the sum of $4,629.00 as presently claimed by Linguis.Linguis[7] Linguis contends that it was the successful party in the proceeding, because it succeeded completely in respect of the second ground of review. Although it did not succeed on every aspect of the first ground, Linguis contends that it did succeed on a material point and is entitled to an award of costs and disbursements in its favour.Decision[8] I accept that Linguis should receive an award of costs on a category 2B basis in respect of commencing the proceeding. Linguis should also receive costs on the same basis in respect of preparation of the common bundle and bundle of authorities.[9] Although Linguis is the successful party to some extent, the Authority succeeded on all but one of the issues that went to trial. Furthermore, the affidavits filed by both parties concentrated virtually exclusively on alleged errors of fact that Linguis ultimately failed to establish. I therefore consider that Linguis should berequired to meet 70 per cent of the Authority's costs in relation to preparation of affidavits. Costs are to be calculated on a category 2C basis.[10] Similarly, the Authority should receive costs in relation to preparation for hearing and appearance at hearing (including appearance of second counsel). Those costs are to be calculated at 70 per cent of the costs payable on a category 2B basis.[11] Linguis is entitled to disbursements in the sum of $1,680.00, being the filing fee, the scheduling fee and an allowance of $500 for photocopying and printing.Lang JSolicitors: Kirkland Morrison O'Callahan & Ho, AucklandMcElroys, Auckland