Prescott v Auckland Transport

[2014] NZHC 2722

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-302 [2014] NZHC 2722

BETWEEN

PETER RICHARD PRESCOTT

Plaintiff

AND

AUCKLAND TRANSPORT Respondent

Hearing:	On the papers
Appearances:	Plaintiff in person D M Hughes for Respondent
Judgment:	3 November 2014

JUDGMENT OF LANG J [on costs]

This judgment was delivered by me on 3 November 2014 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

PRESCOTT v AUCKLAND TRANSPORT [2014] NZHC 2722 [3 November 2014]

[1]      In this proceeding Mr Prescott sought judicial review of a determination of

Judge Gibson in the District Court regarding costs.

[2]      On 4 July 2014, Mr Prescott filed a notice of discontinuance.  The matter was then placed before Cooper J, who was at that time the Judge responsible for case- managing  judicial  review  proceedings.    He  issued  a  minute  on  11  July  2014 indicating that if the respondent sought costs on a Category 2B basis, those costs should be quantified.   On 15 July 2014, counsel for the respondent filed a memorandum confirming that the respondent sought costs on a Category 2B basis amounting to $2,540.00 inclusive of disbursements.

[3]      Cooper J was subsequently appointed as a Judge of the Court of Appeal with effect from 1 September 2014.  Unfortunately, he was not able to deal with the issue of costs in this proceeding before he took up that position.  The file has therefore been referred to me in my capacity as Duty Judge this week to determine that issue.

[4]      Matters are complicated by the fact that the plaintiff and respondent are also involved in proceedings within the bankruptcy jurisdiction of this Court.1   In an oral judgment delivered in that proceeding on 16 July 2014, Associate Judge Doogue granted Auckland Transport leave to amend the amount claimed against Mr Prescott in that proceeding by the sum of $2,540.00.2   The Associate Judge recorded that this “represents the amount of a costs order made by Cooper J in judicial review proceedings which were filed in this Court”.3     That statement cannot be correct, because no award of costs has ever been made in this proceeding.  The amount in respect of which Auckland Transport was given leave to amend its claim in the bankruptcy proceeding is the same, however, as the amount it now seeks by way of costs in this proceeding.

[5]      Matters  are  complicated  further  because  Mr  Prescott  claims  that  he  and counsel for Auckland Transport reached a settlement following the hearing before

1      Auckland Transport v Prescott HC Auckland CIV-2013-404-4100.

2      Auckland Transport v Prescott [2014] NZHC 1674 at [1].

3 At [1].

the Associate Judge.  It is obviously not possible to determine that issue within the context of the present proceeding.  If Mr Prescott wishes to pursue that claim, he will need to do so in a separate proceeding.

[6]      Given that Mr Prescott has chosen to discontinue the present proceeding, Auckland Transport is the successful party and is therefore entitled to an award of costs in its favour.  I make an award of costs in favour of Auckland Transport on a Category 2B basis, together with disbursements as fixed by the Registrar.   This means that Auckland Transport is entitled to an award in the sum of $2,540 inclusive

of disbursements.

Lang J

Solicitors:

Kensington Swan, Auckland
Copy to:

P R Prescott