Attorney-General v Institution of Professional Engineers New Zealand Incorporated

[2018] NZHC 507

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2015-485-000223

[2018] NZHC 507

BETWEEN

THE ATTORNEY-GENERAL

Plaintiff

AND

INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED

First Defendant

AND

ALAN MICHAEL REAY

Second Defendant

Hearing:

27 April 2017

Appearances:

K G Stephen and I M G Clarke for Plaintiff and First Respondent H J P Wilson and M J Neill for First Defendant and Second

Respondent
W J Palmer and O D Peers for Second Defendant and Applicant

Judgment:

22 March 2018

COSTS JUDGMENT OF WILLIAMS J

Final Ruling and Orders

[1]                 On 8 March 2018, Dr Reay’s counsel filed a memorandum advising that the parties could not agree on costs. The memorandum also advised that Dr Reay seeks costs on a 2B basis plus disbursements against the Attorney-General and Institute of Professional Engineers New Zealand Incorporated (IPENZ). This results in costs of

$12,934.00 plus disbursements of $1728.21.

[2]                 On 16 March 2018, the Attorney-General and IPENZ’s counsel filed a memorandum accepting that costs on a 2B basis but seeking a reduction in Dr Reay’s costs award in the following two respects:

THE ATTORNEY-GENERAL v INSTITUTION OF PROFESSIONAL ENGINEERS NEW ZEALAND INCORPORATED [2018] NZHC 507 [22 March 2018]

(a)$892.00 in relation to a memorandum dated 29 May 2017; and

(b)one third to recognise that Dr Reay was not successful in respect of the privilege element of the argument and that a large portion of the hearing was spent establishing the existence of legal advice after it was made clear that this was unnecessary.

[3]I set out briefly my view as follows:

(a)Having reviewed the document of 29 May 2017, I do not accept that costs are justified in respect of it. The memorandum was no more than a placeholder.

(b)I do not accept that a deduction of one third of the total costs is warranted. It is clear that a successful party is entitled to full costs where the plaintiff succeeded in the essential step of the argument, in this case, waiver.1

[4]Dr Reay is accordingly entitled to costs of $12,042.00 and disbursements of

$1728.

Williams J

Solicitors:

Crown Law, Wellington for Plaintiff
Kensington Swan, Wellington for First Defendant

Buddle Findlay, Christchurch for Second Defendant

1      See Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2013] NZCA 79 at [132].