Lepcha v Immigration and Protection Tribunal

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-002113 [2013] NZHC 3227

UNDER the Judicature Amendment Act 1972

IN THE MATTER of the Immigration Act 2009

BETWEEN CHHEOGYAL JAH OM SANDYANG LEPCHA
Applicant

ANDIMMIGRATION AND PROTECTION TRIBUNAL
First Respondent
THE MINISTER OF IMMIGRATION Second Respondent

On the papers.

Judgment: 4 December 2013

JUDGMENT OF ANDREWS J [Costs]

This judgment is delivered by me on 4 December 2013 at 2.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
P F Wicks, Barrister, Auckland (Applicant)
Cook Morris Quinn, Auckland – R P Chandra (Applicant) Meredith Connell, Auckland (Second Respondent)

LEPCHA v IMMIGRATION AND PROTECTION TRIBUNAL (COSTS) [2013] NZHC 3227 [4 December
2013]

[1] The parties have not been able to agree as to costs, following my judgment of

25 September 2013, in which I dismissed the applicant’s application for judicial

review of a decision by the first respondent.

[2] The second respondent seeks an award of costs, and counsel has provided a calculation of costs on a 2B basis, in the sum of $9,054.50. Counsel for the applicant does not contest the claim for 2B costs in and of itself, but asks the Court to exercise its discretion to order reduced costs. In support of the application for reduced costs, Mr Wicks has outlined the applicant’s financial circumstances. The applicant was out of work for six to seven months up to 1 November 2013, since when he has been in paid employment which will end in April 2014, apparently due to visa conditions. It is also noted that the applicant and his family have little in the way of assets. There is a car valued at $6,000, and three bank accounts with very small balances in them. It is submitted that the applicant and his family are struggling financially, made more pressing by the fact that a new baby is expected in April 2014, and the applicant’s partner will then spend several months on maternity leave.

[3] As counsel for the applicant acknowledged, it is a general principle in respect of costs that the unsuccessful party should pay costs to the successful party. The Court may, however, refuse to make an order for costs, or reduce costs otherwise payable, where a reason exists which justifies the Court in doing so.

[4] In the present case, I am satisfied that an order for reduced costs is appropriate. I am not satisfied that no order for costs should be made.

[5] The applicant is ordered to pay costs in the sum of $4,500.

Andrews J

CaseChat Overview and Summary

Lepcha v Immigration and Protection Tribunal involved the applicant, Chheogyal Jah Om Sandyang Lepcha, challenging a decision by the Immigration and Protection Tribunal. The applicant sought judicial review of the Tribunal's decision, which was contested by the Immigration and Protection Tribunal and the Minister of Immigration. The High Court was tasked with resolving the dispute over the appropriate costs to be awarded in the proceedings.

The legal issues before the court included whether the applicant should bear the full costs of the proceedings as per the usual practice in judicial review cases and whether the court should exercise its discretion to reduce the costs in light of the applicant's financial circumstances. The court considered the principle that the unsuccessful party in litigation typically pays the costs of the successful party but also acknowledged the discretionary power to adjust costs based on specific circumstances.

The court determined that while it was appropriate for the applicant to contribute to the costs of the proceedings, a reduction was warranted due to the applicant's financial hardship. The court noted the applicant's unemployment, limited income, and impending expenses related to the birth of a child and the applicant's partner's maternity leave. Considering these factors, the court exercised its discretion to order that the applicant pay reduced costs of $4,500 instead of the full amount sought by the second respondent.

The final order was that the applicant, Chheogyal Jah Om Sandyang Lepcha, would pay costs in the sum of $4,500 to the second respondent, reflecting the court's consideration of the applicant's financial situation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established