JIN v DISTRICT COURT AT NORTH SHORE & ORS [2013] NZHC 1839

JIN v DISTRICT COURT AT NORTH SHORE & ORS [2013] NZHC 1839 [23 July 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2012-404-004905[2013] NZHC 1839UNDER the Juthe Judicature Amendment Act 1972IN THE MATTER of a minute/directions made by theDistrict CourtBETWEEN RUJING JINApplicantAND DISTRICT COURT AT NORTH SHOREFirst RespondentAND YASUKI KONISHI andMAKIKO KONISHISecond RespondentsHearing: (on the papers)Appearances: Y Lee for the ApplicantD B Hickson for the Second RespondentsJudgment: 23 July 2013[COSTS] JUDGMENT OF WYLIE JThis judgment was delivered by Justice Wylieon 23 July 2013 at 4.00 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel:Y Lee, TakapunaD B Hickson, Auckland[1] I refer to my oral judgment dated 20 June 2013. I declined Ms Jin'sapplication for interim relief and gave judgment in favour of the second respondents, Mr and Mrs Konishi. I held that they were entitled to costs. I invited the parties to file memoranda.[2] Those memoranda have now been filed.[3] Mr Hickson, on behalf of Mr and Mrs Konishi seeks full indemnity costs. He argues that the application for interim relief was misconceived, and that Mr and Mrs Konishi have been put to considerable needless expense, for which they ought properly to be reimbursed. In particular, he argues that Ms Jin, as applicant, had no position to preserve, because her defence had been struck out by the District Court. He observes that Ms Jin had not appealed the strike out, and that there was thereforenever a serious issue to be tried. Mr Hickson asserts that Mr Konishi's costsattributable to the application amount to $10,891.70, inclusive of GST and disbursements. He seeks either full indemnity costs or, in the alternative, costs calculated on a Category 2B basis, together with increase of five percent.[4] Mr Lee, on behalf of Ms Jin, submits that costs should be reserved, or alternatively fixed on a Category 1A basis. He takes issue with some of the matters asserted by Mr Hickson. First, he notes that the issue of whether or not the Court had jurisdiction was raised by me, and not by Mr Hickson. Secondly, he notes Mr Hickson has not provided a timesheet, or itemised costings. He also notes that the schedule of costs provided by Mr Hickson includes costs unrelated to the matters which were before the Court. He argues that Mr and Mrs Konishi have not crossed the high threshold required for indemnity costs to be awarded, and that it cannot besaid that Ms Jin's position was hopeless or frivolous. He argues that the starting point for costs should be a calculation taken on a 1A basis and further, that costs awarded in favour of Mr and Mrs Konishi should be reduced by 25 percent, to reflectat least the Konishi's misinterpretation in relation to the Court's jurisdiction.Analysis[5] Ms Jin was seeking an order that no further steps should be taken in the District Court, and that pending funding determination for an appeal by the Court ofAppeal, there should be a stay of proceedings in the District Court. The application was brought under s 8 of the Judicature Amendment Act 1972.[6] It did not occur to either counsel to query whether the Court had jurisdiction under that provision — the substantive application for review having been dismissed. I raised that issue with counsel, after I had read the papers in the matter, and prior to the hearing. I referred counsel to the decision of Faavae v Ministry of Immigration.1 Neither counsel picked up that the case went on appeal. Nor did either counsel refer to any of the other authorities which have considered or appliedFaavae, or in which the point has been discussed. I do not attribute responsibility for this to either party alone. It does, however, put Mr Lee's submissions in thisregard in context. Essentially, it is a neutral factor.[7] Ms Jin sought a declaration staying further proceedings pending her appeal of my substantive decision to the Court of Appeal. I reached the conclusion that Ms Jin did not have a position to preserve, because her position is affected not by my decision on her application for review, but rather by a subsequent decision given by Judge Sharp on 30 April 2013 striking out her defence to the base proceedings. It was my conclusion that it was therefore pointless for me to be asked to grant the application for interim relief.[8] I cannot see that there is any answer to this proposition. Certainly none has been volunteered by Mr Lee. The position should have been appreciated by Ms Jin prior to proceeding with her application. The application should have been withdrawn.[9] Costs are of course in the discretion of the Court. In this case, Mr and Mrs Konishi, as the successful party, are entitled to an award of costs.[10] In my view, however, this is not a situation where Ms Jin should be ordered to pay indemnity costs. Initially, she did not act vexatiously, or unnecessarily in bringing her application. Rather, she acted unnecessarily when she continued withthe application after Judge Sharp's decision striking out her defence. It follows that1 Faavae v Ministry of Immigration (1997) 11 PRNZ 168 (HC).in my view, Mr and Mrs Konishi are not entitled to indemnity costs for all of the costs incurred by them. Rather, it seems to me a situation where r 14.6(3)(b)(ii) applies. Ms Jin contributed unnecessarily to the time taken and the expenseincurred, by unnecessarily continuing with the proceedings following Judge Sharp'sdecision of 30 April 2013.[11] In my judgment, the best way to recognise the costs to which the Konishi'sare entitled, is to determine what categorisation is appropriate and then to consider an uplift.[12] In my view, the application is appropriately categorised as a 2B proceeding. It was a proceeding of average complexity requiring a normal allocation of time.[13] Costs calculated on a 2B basis come to $5,572. They can be calculated as follows:(a) Preparing notice of opposition $ 796.00(b) Attendance at judicial telephone conference $ 398.00(c) Preparation of written submissions $2,985.00(d) Appearance at hearing $ 995.00(e) Sealing order $ 398.00Total $5,572.00[14] I increase the award of costs by 50 percent because, following Judge Sharp's decision and Ms Jin's decision not to appeal that decision, the hearing in this Courtbecame unnecessary. Thereafter, Ms Jin's pursuit of interim relief became pointless.It follows that total costs awarded come to $8,358.00. I award costs in that sum against Ms Jin and in favour of Mr and Mrs Konishi._________________________Wylie J_________________________Wylie J