E R Bellas Limited v Karikari 2012 Charitable Trust Incorporation

[2020] NZHC 3262

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-60

[2020] NZHC 3262

UNDER

the Sale and Supply of Alcohol Act 2012

IN THE MATTER

of an appeal against a decision of the Alcohol Regulatory and Licensing Authority at Kaitaia

BETWEEN

E R BELLAS LIMITED

Appellant

AND

KARIKARI 2012 CHARITABLE TRUST INCORPORATION

Respondent

Hearing:	On the papers
Counsel:	D McGill for the Appellant M Chen for the Respondent
Judgment:	10 December 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 10 December 2020 at 11:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr D McGill, Duncan Cotterill, Auckland

Ms M Chen and Ms R Judd, Chen Palmer, Auckland

E R BELLAS LTD v KARIKARI 2012 CHARITABLE TRUST INC [2020] NZHC 3262 [10 December 2020]

[1]    In my judgment dated 25 September 2020 dismissing an appeal against a decision of the Alcohol Regulatory and Licensing Authority,1 I said that the respondent is entitled to 2B costs.2 I encouraged the parties to agree costs but said, if they could not, I would receive memoranda and determine costs on the papers unless I needed further assistance from counsel.

[2]    Costs are agreed except for a disputed claim to costs in respect of the appellant’s interlocutory application for an order suspending the Authority’s decision pending the outcome of the appeal. The amount in dispute is only $1,434 and a $110 disbursement, but Court determination is required.

[3]    In relation to the interlocutory application, the respondent seeks costs only for filing its opposition to the interlocutory application. It does not seek costs for preparation of submissions or appearance at a hearing of a defended application.     It acknowledges that no hearing was needed because the appeal was given an early substantive hearing. But it seeks costs for filing its opposition on the basis that that step was reasonably required before the callover at which the early substantive hearing date was fixed and costs follow the event.

[4]    The appellant submits that the respondent’s opposition to the interlocutory application had very limited prospects of success, relying on the statement by Brewer J in the callover minute that the Court is “most unlikely to consent to the cancellation of the on-licence for a period of more than a month while the date for the appeal hearing is approached”.

[5]    A key costs principle is that costs follow the event, as Ms Chen effectively submitted. But as Mr McGill submitted, the merits of the interlocutory application and the substantive appeal are different matters.3 The High Court Rules 2016 require, absent special reasons to the contrary, that costs on an opposed interlocutory application be fixed when the application is determined. Determination may be either

1      E R Bellas Ltd v Karikari 2012 Charitable Trust Inc [2020] NZHC 2517.

2 At [65].

3      Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

by decision of the Court or by another mechanism, such as agreement of the parties or withdrawal by leave.4

[6]    Here, there was no determination of the interlocutory application, and no order as to costs when the interlocutory application was superseded. Consistent with Brewer J’s comment, the interlocutory application may have had merit and the opposition less so, but in any event no order was necessary given the allocation of an early substantive hearing. The interlocutory application was not withdrawn in circumstances that would have justified costs of the application being fixed against the appellant. Indeed, the respondent does not suggest that, but seeks costs on the basis it succeeded on the substantive appeal.

[7]    In the circumstances, I do not consider the costs payable to the respondent should include its notice of opposition to the interlocutory application. I see them as separate from costs in the cause (the substantive appeal). I consider that each party’s costs of the interlocutory application should lie where they fall.

Result

[8]The respondent is entitled to 2B costs of $9,918.50.

Gault J

4      Ip v Ip [2016] NZHC 528 at [12]; Winton v Winton [2018] NZHC 486, (2018) 24 PRNZ 1 at [16]-

[17]; and SKP Inc v Auckland Council [2019] NZHC 1665 at [5].