Published tribunal order
Tenancy Tribunal case 4924994 — Tenancy dispute at 74 Deacon Road, Riverhead, RD 2, Riverhead 0892
Decided 9 Jan 2025 · Published 9 Jan 2025 · Application 4924994
Order
- [The party] to pay Yi Li and Oaklands Trustee Limited the sum of $5,991.13 for representation costs.
Reasons
- The Tribunal has must consider an application for representation costs.
- The background in this case is now complex and involved. In very brief summary, the Tribunal has found that Mr Robbins is an occupier of residential premises owned by Yi Li in the capacity of a trustee, and that Mr Robbins does not have a right to occupy those premises. Mr Robbins appealed that decision to the District Court, but was not successful in his challenge. The landlord then applied for a possession order which I granted on 4 November 2024, ordering that possession be returned to the owner immediately.
- I record that Mr Robbins has applied for a rehearing and stay of the 4 November order, but that was declined by the Tribunal in a decision dated 11 November 2024.
- The owner was represented by counsel at that 4 November 2024 hearing, and applies for representation costs, which is the subject of this order. I had issued timetabling for submissions on the costs claim to be filed on the papers. Only the owner filed submissions, I have not received anything further from Mr Robbins on those costs claim or submissions.
- The owner seeks costs to the sum of $9,985.22, and has provided the invoices from counsel in support of that claim, alongside its written submissions. Analysis
- Section 102 of the Residential Tenancies Act 1986 (RTA) relates to costs. Section 102(2) confirms that the Tribunal “may make an order” where “any of the parties was presented by counsel”. Subsection 3 confirms that an order may be made to a party for “the reasonable costs of that other party in connection with the proceedings.”
- It is unusual for a Tribunal or Court in New Zealand to award full indemnity costs against the losing party.
- What is considered to be ‘reasonable costs’ will depend on a range of factors. In Holden v Architectural Finishes Ltd [1997] 3 NZLR 143 Justice McGechan, in his reserved costs decision, held that: ...the sum in issue is a ‘reasonable’ ‘contribution’. It is not some mere gesture. It is not some virtual payment in full. It is merely a contribution, and a reasonable one. At the outer limits, proportions of reasonable actual fees can afford some guidance. A 10% or even 20% contribution – very little indeed – may seldom qualify. A 90% or 80% contribution, virtually the total, may be regarded as likewise...if the ‘reasonable contribution’ earlier determined falls within a middle range, say 40% to 70%,there is a feeling of some comfort...
- The High Court confirmed that when a party is represented by counsel, that the following factors are relevant to be considered when assessing costs: a. The length of the hearing. b. The sum of money involved. c. The legal and factual complexity. d. Whether the argument lacking substance was advanced, and e. The degree of success achieved by the parties.
- Similarly in the judgment of David Blair Ltd v Hawkins Arms and Engineering Ltd (No 2) [1988] 1 PRNZ 162, Tompkins J considered a costs issue where the party was represented, and held: In addition to the length of the hearing, matters such as the amount of money involved, the importance either to the parties or generally of the issues, monetary or non monetary, the legal and factual complexities, the amount of time required for effective preparation, the number and complexity of interlocutory applications and the likely or actual solicitor and client costs incurred, may, in appropriate cases, be relevant to the exercise of the discretion.
- When I consider the factors set out above, I conclude as follows: a. Length of hearing – the hearing had been scheduled for a full afternoon in the Tribunal, but I am minded that there was a reasonably involved pre- hearing history in this case. b. Sum of money involved – this was not a claim for money as such, but possession of residential premises. While not involving money, it was an important matter for both parties. c. Complexity – This was a particularly complex case. There have been multiple hearings in the Tenancy Tribunal, Disputes Tribunal, and District Court. Even at the hearing in November 2024, the tenant was advancing reasonably involved arguments as to his right to possess the premises. Given the history, and arguments presented, it was reasonable for the owner to appoint a legal representative. d. Unmeritorious arguments – I cannot say that the owner advanced unmeritorious arguments, but I consider that Mr Robbins did, given that at the possession hearing, he sought to relitigate matters that had already been considered and to that extent prolonged or increased the matters to be considered at the November 2024 hearing. e. Degree of success – the owner was entirely successful, Mr Robbins had no degree of success.
- Taking the above factors into consideration, I have determined that a cost award of 60% of the actual costs incurred by the owner is reasonable and that is ordered. I therefore order Mr Robbins to pay the owner costs to the sum of $5,991.13.