Van Uden v Commissioner of Inland Revenue

[2017] NZHC 3058

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000464 [2017] NZHC 3058

BETWEEN

GERARDUS PETER VAN UDEN

Appellant

AND

THE COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:	(on the papers)
Counsel:	M Hinde for Appellant S J Leslie and R Soni for Respondent
Judgment:	11 December 2017

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 11 December 2017 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Vlatkovich & McGowan, Auckland

VAN UDEN v THE COMMISSIONER OF INLAND REVENUE [2017] NZHC 3058 [11 December 2017]

Crown Law, Wellington

Copy to:           M Hinde, Auckland

[1]      In the judgment delivered on 19 October 2017 the Court directed costs were to follow the event noting the Commissioner was entitled to costs on a 2B basis.

[2]      Mrs Hinde has raised two issues in relation to costs. First Mrs Hinde argues in reliance on the authority of Hudson v Attorney-General1 that the Commissioner is not entitled to actual costs (which are less than 2B costs) as she is not entitled to indemnity costs.  None of the criteria for awarding indemnity costs under r 14.6(4) apply.

[3]      The Commissioner says that Mrs Hinde also suggested that as the Court did not reserve the issue of disbursements the Commissioner was not entitled to disbursements.

[4]      The case of Hudson can be distinguished and confined to its own particular facts.

[5]      High Court Rule 14.2(f) is applicable in the circumstances where scale costs are appropriate but actual costs are less than scale costs. The order of the Court in this case was for costs to scale. Scale costs amount to $13,157. In fact the Commissioner has advised her actual costs incurred were $12,300.  In those circumstances the effect of HCR 14.2(f) is that the costs award should not exceed the $12,300 actually incurred. That is the appropriate order for costs.

[6]      As to disbursements, although the Court did not directly reserve the issue of disbursements, r 14.12(2) confirms that disbursements are effectively included in the costs award.  In this case I accept the submissions for the Commissioner that it was appropriate for her to use Wellington based trial counsel to conduct the appeal. There were efficiencies in doing so which were reflected in the costs claimed.   The Commissioner is entitled to disbursements which, if counsel cannot agree, are to be

fixed by the Registrar.

1      Hudson v Attorney-General [2017] NZHC 2790.

[7]      In summary the final order of the Court is that the Commissioner is to have

costs of $12,300 together with disbursements to be fixed by the Registrar.

Venning J