WorkSafe New Zealand Ltd v Thompson [2018] NZDC 3295

Published 13 December 2018

Oral Judgment on application for costs — Defendant unable to pay costs — Costs in Criminal Cases Act 1967, s 4(1) — residual discretion in costs award. The defendant, Mr Thompson, appeared for oral judgment on an award of costs. The Judge had previously reached a sum totaling $60,077.25. At sentencing, the defendant had claimed he could not pay the level of reparation and fine imposed, $100,000 and $80,000 respectively. This was in spite of the fact the defendant still retained a number of assets on hand, according to his Declaration as to Financial Capacity, and had yet to wind up his company, Beau Thompson Limited. WorkSafe argued that the Judge should exercise his residual discretion in favour of awarding costs. WorkSafe pointed to the continued activities of the defendant's company, and the fact that he still retained the personal assets mentioned in his Declaration as to Financial Capacity. WorkSafe also noted that the defendant was investigating alternative income sources through growing maize and that the defendant was in a position to make monthly payments of the amount owing while continuing to look for opportunities for deriving income. WorkSafe argued that while the defendant may not have been in a financial position to pay an award of costs immediately, he was capable of paying in instalments and, regardless, the ability to pay ought not be a barrier to the Court exercising its residual discretion. The defendant argued that while the company was still operating, it was scaled down with a view to wind up, and his financial position had not improved since the Declaration as to Financial Capacity. He argued that he was trying to slowly sell his assets, valued at $74,000, but could not get a good price. Therefore, he argued he could not pay the costs indicated in the judgment. The Judge found that the defendant's inability to sell his assets at a maximised price was not a sufficient reason to avoid an award of costs, as he could continue to make this claim and manipulate the Court process. The Judge also noted that the defendant had already entered into an arrangement with the registrar to pay the outstanding fine and reparation by instalments, which had enabled the defendant to avoid selling his assets. The Judge found that the defendant had the ability to pay an award of costs through the sale of some or all of those assets and therefore exercised his residual discretion and ordered the defendant to pay the sum of $60,077.25. Judgment Date: 23 February 2018.