Keenan v Grant

[2021] NZHC 2564

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2021-418-000007

[2021] NZHC 2564

BETWEEN

ANTHEA ROSE KEENAN AND GEOFFREY KING
Appellants

AND

JACQUELINE GRANT

Respondent

Hearing:

On the papers

Appearances:

Appellants in person

M D W King and I L Eaton for Respondent

Judgment:

29 September 2021

JUDGMENT OF DUNNINGHAM J RE: COSTS

This judgment was delivered by me on 29 September 2021 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]                 On 28 August 2021, Mr King advised that he was abandoning his appeal against the District Court decision. In my minute dated 7 September 2021, I reserved the issue of costs.

KEENAN v GRANT [2021] NZHC 2564 [29 September 2021]

[2]                 The respondent, Ms Grant, has sought costs from Mr King, being half of the costs incurred to date calculated on a 2B basis.

[3]                 On 13 September 2021, I gave Mr King 10 working days to file any submissions in response to the memorandum of counsel for the respondent as to costs. I also indicated that, subject to any submissions I received, I would presume that half the sum paid as security for costs could be released to meet any costs award made against Mr King. Mr King has not filed any submissions within the timeframe I directed.

[4]Accordingly, I now determine costs.

[5]                 Ms Grant seeks costs, calculated on a 2B basis, in the sum of $7,409 against Mr King, being a half share of her costs entitlement for the steps incurred by Ms Grant to date. This award is sought on the following grounds:

(a)there is a presumption in r 15.23 of the High Court Rules 2016 that a party who discontinues a proceeding against another party must pay costs of and incidental to the proceeding, up to and including, the discontinuance; and

(b)while the Court’s general discretion may override the presumption as to costs on discontinuance, the onus is on the discontinuing party to persuade the Court to exercise that discretion.1

[6]                 Applying those principles to the present case, Ms Grant says she has been put to the cost of defending all steps in this appeal. The appeal itself lacks merit and was unreasonably pursued by Mr King, noting the submissions filed to date do not appear to relate to the issues under the Harmful Digital Communications Act 2015 which were the subject of the decision, but  rather to  contest  statements about  Mr  King and  Ms Keenan contained in the judgment.

1      Powell v Hally Labels Ltd [2014] NZCA 572 at [21]; and Earthquake Commission v Whiting

[2015] NZCA 144, (2015) 23 PRNZ 411 at [68].

[7]                 Counsel for Mr Grant also note that she has been subjected to highly offensive and derogatory publications by Ms Keenan and Mr King as recorded in the District Court judgment, over a long period of time. In those circumstances, and given the purpose of the Act is to provide victims of harmful digital communications with a quick and efficient means of redress, it would be contrary to the Act to require      Ms Grant to meet her own costs in respect to Mr King filing and pursuing his appeal.

Discussion

[8]                 I accept the respondent has correctly set out the principles relating to costs on a discontinuance. She has a presumptive entitlement to costs. Nothing has been raised to displace this presumption.

[9]                 Accordingly, I award the respondent costs  in  the  sum  of  $7,409  against Mr King, being a half share of the 2B scale costs entitlement for the steps incurred by the respondent to this point.

[10]              I authorise the release of half the amount paid in security for costs to the respondent in part satisfaction of this judgment.

Solicitors:

Lane Neave, Christchurch

Copies To:

A Keenan, Hokitika G King, Christchurch