LEWIS HOLDINGS LIMITED v STEEL & TUBE HOLDINGS LIMITED [2016] NZHC 955

LEWIS HOLDINGS LIMITED v STEEL & TUBE HOLDINGS LIMITED [2016] NZHC 955 [12 May 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-006104[2016] NZHC 955UNDER Part 18 of the High Court RulesIN THE MATTER of ss 272(1)(a) and 272(1) of theCompanies Act 1993BETWEEN LEWIS HOLDINGS LIMITEDFirst PlaintiffBORIS VAN DELDEN AND PERIMICAELA FINNIGANSecond PlaintiffsAND STEEL & TUBE HOLDINGS LIMITEDDefendantJudgment: 12 May 2016JUDGMENT OF COLLINS J[1] In the final judgment on 11 September 2015, MacKenzie J awarded costs to the plaintiffs and directed the Registrar to determine the disbursements that should be allowed, pursuant to r 14.22 of the High Court Rules, in the event the parties were unable to reach an agreement.[2] The Registrar issued a decision on 5 February 2016 and an amended decision on 23 February 2016. In granting disbursements, the Registrar took into account the various memoranda filed by the plaintiffs and the defendants. The Registrar awarded most items that were sought by the plaintiffs, but certain items objected to by the defendants were denied.[3] The defendants now seek a review of the Registrar's decision. A review ispossible pursuant to r 14.23:Review of taxationThe court may, on the application of a party dissatisfied with the Registrar's decision, refer a matter back to the Registrar with any necessary directions, or may itself make any amendments that appear necessary, if—(a) the Registrar has ascertained or fixed the amount of costs or disbursements or the head under which costs are allowed; and(b) the Registrar's actions referred to in paragraph (a) were done under these rules or by a direction of the court; and(c) it appears that the Registrar acted erroneously as to amount or principle.[4] The parties disagree as to correct standard of review. The plaintiffs say that a court should adopt the principles established in May v May relating to an appeal from a discretionary decision.1 This is the view of the authors of McGechan on Procedure.2 The defendant argues that the review should be by way of rehearing. This is because r 14.23 allows the court to intervene where the Registrar was wrong in principle or as to the amount. If the court is empowered to amend the decision on disbursements, arguably a rehearing is necessary.[5] For the following reasons, I agree with the view of the plaintiffs: review of the Registrar's decision as to disbursements should consider only whether thedecision was wrong as a matter of law or principle, whether the decision took into account irrelevant considerations or failed to take into account relevant considerations, or whether the decision was plainly wrong:(1) First, r 14.21 provides that the Registrar is to be the sole judge of all questions of fact that arise on taxation. Although there is no equivalent provision regarding Registrar's decisions ondisbursements, it indicates a reluctance to revisit costs decisions of the Registrar;(2) Secondly, r 14.23 anticipates a court referring the matter back to the Registrar, which indicates that the court is checking primarily for errors in the Registrar's reasoning; and1 May v May CA58/80, 3 February 1982.2 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR14.23.01].(3) Thirdly, the use of the term "review" rather than "appeal" furthersupports the plaintiff's position. In considering an analogous provision under the Law Practitioner's Act 1982 in Skinner v Harkness Henry & Co, the High Court found:3First, it will be noted that by virtue of s 149 of the Law Practitioners Act, the role of this Court is mercifully limited. It has no power to rehear the case. Section 149 confers no more than the power to "review the decision" of theRegistrar. To review someone else's decision is very different from embarking upon one's own consideration of a case de novo. As Holland J held in Ministry of Works and Development v Herring (14.7.88 Dunedin M7/86), the Court will interfere with the Registrar's decision if satisfied that the Registrar had acted on a wrong principle.[6] I find no error of the requisite character in the Registrar's decision. Whethereach of the disputed items should be allowed is a matter of judgment and there is no rule that prevents any of them being recovered. Therefore, the Registrar made no error of law. The decision to grant each item was a reasonable one and therefore was not plainly wrong.[7] The defendant also submitted that the Registrar failed to give adequate reasons for her decisions and gave no indication of having considered thedefendant's arguments. In her decision, the Registrar noted that the memoranda of counsel for the plaintiffs and the defendant had been considered. Further, certainitems included in the plaintiffs' claim for disbursements and disputed by thedefendant were not granted, which indicates the memoranda were indeed considered. For completeness, there is nothing to indicate the Registrar took into account irrelevant factors in making her decision.[8] Having found no error in the Registrar's decision, the application for reviewis dismissed.[9] The plaintiffs are entitled to costs in relation to the application to review the Registrar's decision. Those costs will be on a scale 2B basis.3 Skinner v Harkness Henry & Co HC Hamilton AP44/90, 16 July 1990 at 5.____________________D B Collins JSolicitors:Shieff Angland, Lawyers, Auckland for PlaintiffsBuddle Findlay, Wellington for Defendant