KURY v THE UNIVERSITY OF AUCKLAND [2021] NZHC 724

KURY v THE UNIVERSITY OF AUCKLAND [2021] NZHC 724 [1 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-0209[2021] NZHC 724BETWEEN MARIA BESSA MANUELLA KURYApplicantAND THE UNIVERSITY OF AUCKLANDRespondentHearing: On the papersCounsel: J M Matheson for ApplicantA N Birkinshaw and J L Schwarcz for RespondentJudgment: 1 April 2021COSTS JUDGMENT OF WHATA JThis judgment was delivered by me on 1 April 2021 at 11.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Wilson McKay, AucklandBuddle Findlay, Auckland[1] I have an application by the University for costs including increased orindemnity costs. Ms Birkinshaw and Mr Schwarcz, counsel for the University, claimincreased or indemnity costs are appropriate because Ms Kury is said to have actedunnecessarily in commencing and continuing the proceeding. The basis for thissubmission is set out in a schedule. But, in short, the primary complaint is thatMs Kury should have and failed to avail herself of the entry admission appealprocedures and the University's resolution of student academic complaints anddisputes provisions. It is also said that her claim was, in short, without merit, therebeing a major insurmountable issue: admission to the MBChB programme mustfollow two pathways – domestic or international.[2] Ms Birkinshaw and Mr Schwarcz also note the University repeatedly explainedto Ms Matheson, counsel for Ms Kury, the fundamental flaws in her case and, ratherthan accept the application could not succeed, Ms Kury added to the alreadyunnecessary time and costs of the proceeding by amending the claim to add a further,equally unmeritorious, cause of action which was unlikely to succeed for exactly thesame reasons. It is further submitted that Ms Kury's case had been prepared andpresented with serious misapprehensions as to the law and a shifting grasp of the facts.The total costs claimed are $75,827.25.[3] Ms Matheson responds that costs should lie where they fall because Ms Kury'sapplication was essentially public interest litigation and the University, as I had notedin my judgment at [36],1 had not come out of the process unscathed. It is alsosubmitted, contrary to the submissions made by the University, that this was not a clearcase: while the "binary" pathway may have always been obvious to the University,such a pathway was not obvious and is not obvious to students and, in particular,international students. Ms Matheson also points out that I found Ms Kury haddetrimentally relied on two representations and compromised her position and that herposition on those claims was arguable. She also noted that while I found against heron the merits overall, I left open the prospect that on a final hearing, together withfresh or other evidence, a different result might eventuate.1 Kury v The University of Auckland [2021] NZHC 225.[4] Ms Kury also submits that it is open for me to depart from the general rule andthat I should, in fact, award costs in favour of Ms Kury on a 2B basis.Assessment[5] While this was clearly a matter of importance to Ms Kury, I do not consider itwas public interest litigation. Ms Kury stood to gain significantly from her applicationfor injunction had it succeeded. Having said that, I do not accept that her case was sowithout merit as to warrant an indemnity award. In light of my observations at [36]of my judgment,2 the University's submission in that regard is somewhat ambitious.[6] In any event, the University being successful in defending the application, isentitled to its costs on a 2B basis, together with disbursements, to be fixed by theregistrar. I caution against any attempt to engage in a fine-grained debate of stepstaken. The schedule provides for the steps that may be claimed.2 Above n 1.