Glass Bottom Boat v Maritime NZ [2018] NZDC 9309

Published 25 March 2019

Appeal on costs — District Court Rules, rr 14.3, 14.5, 14.6 — indemnity costs — categorising costs. The appellant, having already received a favourable reserved judgment, now sought costs. The respondent submitted that costs should adjourned pending the outcome of the High Court appeal, or failing that, costs should be on a 2B basis. The appellant sought indemnity costs, or failing that, schedule costs on a 3B basis plus reasonable disbursements, or in the alternative costs on a 2B basis to be increased. The Judge first had to determine whether the issue of costs should await the outcome of the High Court appeal. The Judge found that there were no matters that would justify costs not following the event, and that the question was how to calculate them. Rule 14.6 of the District Court Rules provides that in certain circumstances, the court may make an order for increased or indemnity costs. Those instances are exceptional circumstances and have a high threshold, and while the Judge criticised the respondent, Maritime New Zealand, their conduct did not fall into the category of truly exceptional. On the issue then of categorising proceedings, the Judge agreed with the appellant that this was a category 3 case because the proceeding was not of average complexity; it was the first ever appeal undertaken under s 135 Health and Safety at Work Act 2015, involved complex legislative texts, and overlapped with maritime law and legal principles. As to the appropriate band, the Judge deemed that it was band B. Therefore, the Judge awarded the appellant costs on a 3B basis. Judgment Date: 11 May 2018.