Ahuareka Trustees (no 2) Limited v Auckland Council

[2020] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-121

[2020] NZHC 2303

UNDER

the Resource Management Act 1991

IN THE MATTER

of the appeal under section 299 of the Resource Management Act 1991

BETWEEN

AHUAREKA TRUSTEES (NO 2) LIMITED

Appellant

AND

AUCKLAND COUNCIL

Respondent

On the papers:
Judgment:	4 September 2020

JUDGMENT OF HINTON J

[Re Costs]

This judgment was delivered by me on 4 September 2020 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Alan Webb, Barrister, Auckland Burton Partners, Auckland

Party:
Whitford Residents & Ratepayers Association

AHUAREKA TRUSTEES (NO 2) LIMITED v AUCKLAND COUNCIL [2020] NZHC 2303 [4 September

2020]

[1]                 This decision relates to a costs application by a party joined to proceedings under ss 274 and 301 of the Resource Management Act 1991 (the Act).

[2]                 On 2 December 2019 I gave judgment in this matter in favour of Auckland Council, dismissing an appeal by Ahuareka Trustees (No 2) Ltd against a decision of the Environment Court declining resource consent for land use on a property situated between Whitford and Beachlands.1

[3]                 On 15 January 2020, Ahuareka filed an application for leave to appeal to the Court of Appeal. By consent I adjourned the question of costs in this Court pending determination of the leave application. Leave was declined on 28 May 2020.2

[4]                 Ahuareka and the Council then agreed costs and by consent I awarded the Council costs of $14,997.25 plus disbursements of $446.33.

[5]                 The Whitford Residents & Ratepayers Association was granted leave to appear as a party in the Environment Court under s 274 of the Act and was therefore entitled to appear in this Court on the appeal pursuant to s 301 of the Act. The Association was represented at the appeal and made submissions in support of the Council’s position.

[6]                 By memorandum Mr Alderdice, an officer of the Association,3 seeks costs on a 2B basis of $11,352.20 for commencement of response to the appeal, preparation of written submissions, and appearance at the hearing of the appeal. There is no claim for disbursements.

[7]                 Ahuareka opposes the application. Its counsel, Mr Webb, accepts the Association participated on the winning side, but submits the Association was “effectively a bystander” insofar as it adopted and supported the Council’s successful

1      Ahuareka Trustees (No 2) Ltd v Auckland Council [2019] NZHC 3142.

2      Ahuareka Trustees (No 2) Ltd v Auckland Council [2020] NZCA 191.

3      I note the Association was represented at the hearing of the appeal, so no issue arises in this respect. Nor do I consider it necessary, especially when Ahuareka has not taken the point, to insist that the Association obtain legal representation for the purposes of making submissions on the question of costs.

position and “added very little additional material.” In these circumstances, he submits, awarding the Association costs would unfairly benefit the Association and unduly penalise Ahuareka.

[8]                 The ordinary costs regime applies to proceedings in this Court, including appeals, absent some good reason to the contrary.4 In any case, s 299 of the Act provides that the appeal is to be made in accordance with the High Court Rules 2016.5

[9]The ordinary rule in this Court is that a successful party is entitled to costs.6

[10]However, r 14.15 is also part of the ordinary costs regime:

14.15 Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)   several defendants defended a proceeding separately; and

(b)   it appears to the court that all or some of them could have joined in their defence.

[11]             Mr Webb did not refer me to r 14.15 in submissions. However, it does apply. A “defendant” is, inter alia, a person served with a proceeding.7 A proceeding includes an appeal. Ahuraeka was, in bringing its appeal, required to serve a copy of its notice of appeal on the Association as the Association had been a party in the Environment Court.8 It follows that the Association was a defendant in this proceeding. As noted, the ordinary costs regime applies to appeals as it does to other proceedings in this Court,9 such that there is no difficulty in reading “defendants” as “respondents”.

[12]             Rule 14.15 recognises that the Court ought to be cautious in awarding costs in favour of multiple parties where there is overlap between the litigation interests of

4      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109; [2013] 1 NZLR 305 at [7]; and High Court Rules 2016, rr 1.2 definition of “proceeding and 1.4.

5      This is subject to ss 300-307 of the Act, but none of those provisions are presently relevant.

6      High Court Rules 2016, r 14.2(1)(a).

7      Rule 1.3 definition of “defendant”.

8      Resource Management Act 1991, s 299.

9      Above n 4.

those parties, such that a joint defence might have been expected.10 In determining whether more than one set of costs should be allowed where r 14.15 is engaged, this Court has had regard to a number of matters, including:11

(a)in a robust manner, whether the parties have common or overlapping interests, and the extent to which this is so, including whether separate claims were advanced in respect of each defendant and the impact of any relief sought on each party;

(b)whether the defendants’ relationship was such that it was justifiable for them not to join their defences;

(c)whether the parties took legal advice as to the appropriateness of separate representation and, if so, whether that was followed; and

(d)the extent to which one party did or could have relied on another’s submissions or evidence.

[13]             The application of r 14.15 to a s 274 party is not straightforward. The considerations listed above are obviously more apt to named defendants to a first instance general civil proceeding than the position of a s 274 party appearing on an appeal to this Court.

[14]             For instance, s 274(4B) of the Act makes it clear that a s 274 party cannot define and argue for its own desired outcome but is confined to supporting or opposing the decision that has been appealed.12 It follows that the Association’s litigation interest, in terms of the legal outcome for which they contended, was necessarily aligned with the Council’s, making the first point above more equivocal than it would tend to be in a standard proceeding.

10 Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV-2004-4040-3668, 30 March 2005 at [51].

11 Independent Maori Statutory Board v Auckland Council [2017] NZHC 678 at [9]; Jordan v O’Sullivan (No 2) HC Wellington CIV-2004-485-2611, 1 May 2009 at [7]-[8]; and Grey District Council v Blain [2014] NZHC 939 at [4]-[7].

12 Meridian Energy Ltd v Wellington Regional Council [2012] NZEnvC 148 at [6]-[7], citing Transit NZ v Pearson [2002] NZRMA 318 (HC).

[15]             More generally, s 274 is in clear derogation from the usually restrictive approach adopted to preserving the privity of litigation.13 All that is required of an organisation like the Association to become a s 274 party is that it be able to demonstrate it “has an interest in the proceedings that is greater than the interest that the general public has”.14 A wide range of parties will likely be able to satisfy that description. Section 274 parties will seldom have a relationship to a party whose position they support that will allow them realistically to join in their representation, and I do not consider the Association had such a relationship with the Council in this case. This renders the second and third points above similarly equivocal.

[16]             Neither party referred me to any cases addressing the costs of a successful (as opposed to unsuccessful)15 s 274 party on an appeal from the Environment Court to this Court, and nor have I identified any relevant authorities.

[17]             The standard approach to costs in the Environment Court, which is on a discretionary basis,16 is quite different to the High Court costs regime. However, the practice in the Environment Court in respect of a s 274 party’s costs appears to be that the Court will assess the extent to which that party’s efforts aided in resolving the proceeding in a just and expeditious manner. The greater the value added, the more likely it is that an award of costs will be made, and the greater the likely amount of the award.17 The fourth consideration relevant to the application of r 14.15 noted above clearly invites a similar inquiry.

[18]             This brings me back to Mr Webb’s submission. I agree with him that the Council was the active protagonist. The part played by the Association was clearly one of supporting the Council. As Mr Webb correctly notes, I did not in my judgment refer to any point made by the Association that was not also made by the Council.

13 Compare Seales v Attorney-General [2015] NZHC 828 at [41].

14 Resource Management Act 1991, s 274(1)(d).

15 See Lambton Quay Properties Nominee Ltd v Wellington City Council [2014] NZHC 878, [2014] NZRMA 257 at [113], in which a s 274 party was made jointly and severally liable for the costs of a failed appeal together with the unsuccessful local authority, the position of which it had sought to support.

16 See Re Canterbury Cricket Association Inc [2014] NZEnvC 106 at [9]-[18].

17 At [19]-[35].

[19]             However, it is clearly relevant that a s 274 party is required only to disclose some greater interest in the proceedings than the general public in order to become involved. It is not required, as would be the case with say an intervenor, to demonstrate its presence will be of assistance to the Court.

[20]             In this respect, the Association had a clear interest both greater than and distinct from that of the wider public in opposing Ahuareka’s commercially motivated efforts to obtain consent for substantial works that would have significantly altered the character of the locality, the residents of which the Association represents. The Association’s case is precisely the type of representation the derogation from a strict approach to privity found in s 274 was meant to facilitate.

[21]             The policy of the Act would be undermined by requiring a s 274 party such as the Association to make a distinctive contribution to the proceeding before it can be awarded costs.

[22]             Further, while the Association could arguably have just relied on the Council’s written submissions, they were entirely justified in responding to the appeal and appearing at the hearing to maintain at least a watching brief.

[23]             For all of these reasons, I am satisfied that a straightforward application of the ordinary costs regime would not adequately recognise the sui generis position of s 274 parties. Rather, I think the principled approach is to have regard to the level of success, the extent to which the s 274 party’s participation in the appeal was of actual assistance to the Court, and the policy of the statutory regime.

[24]             Here, while the Association’s role was as noted largely a supporting one, it did add weight to the appeal. Moreover, it of course succeeded in achieving exactly what it set out to do in exercising its statutory rights as a s 274 party. Also taking account of the policy of the Act, I order the appellant pay the Association costs of $8,000, being about two-thirds of the 2B scale costs the Association claims.

Hinton J