Anderson v Auckland Council

[2014] NZHC 2325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001046 [2014] NZHC 2325

UNDER

the Judicature Amendment Act 1972

IN THE MATTER

of a decision made pursuant to s 95B of the Resource Management Act 1991

BETWEEN

IAN ANDERSON and NORMA ANDERSON

First Plaintiffs

PENE PATI and NORMA ANDERSON Second Plaintiffs

AND

AUCKLAND COUNCIL First Defendant

BODY CORPORATE 145836
Second Defendant

GHUZNEE HOLDINGS LIMITED Third Defendant

Hearing:	On the papers
Judgment:	24 September 2014

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Wednesday, 24 September 2014 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Pidgeon Law, Auckland.

Brookfields Lawyers, Auckland. Bramwell Grossman, Hastings.

ANDERSON v AUCKLAND COUNCIL [2014] NZHC 2325 [24 September 2014]

[1]      The first and second plaintiffs in this proceeding sought declarations designed to stop the conversion of a retirement village into residential dwellings. They did not succeed.   The parties have not  been  able to  agree  costs  and  it  is  necessary to determine that issue.

[2]      The first defendant, represented by Brookfields, and the second and third defendants, represented by Bramwell Grossman, having been successful in resisting the claims of the plaintiffs.   In the ordinary course of events they each should be entitled to costs on a 2B basis together with disbursements.

[3]      The  plaintiffs  resist  a  costs  order.    First  they  argue  that  this  proceeding concerned a matter of genuine public interest involving the interpretation of the words “occupier” and “inhabitant occupier” in the Resource Management Act 1991. It was suggested that there was no High Court authority on the issue that had to be determined and there was little by way of Environment Court guidance, and so there was a public interest in the issue to be determined.

[4]      The proceeding involved the pursuit of a purely private interest, the goal of which was the personal advantage of the Andersons.   Only they would have been affected positively by a successful outcome.   To be successful under the public interest exception the proceedings must concern a matter of genuine public interest, have  merit  and  be  of  general  importance  beyond  the  interests  of  the  particular

unsuccessful litigant.1   The Court must be satisfied that a private interest is not being

dressed up as a public one,2  and that the proceedings are not being brought out of any motive of personal gain.3

[5]      None of these criteria are satisfied.  The fact that the case may have some precedent value does not mean that it is a matter of “genuine public interest” for the purposes of r 14.7(e).  This claim seeking to advance as it does the interests of the Andersons, can be contrasted to cases where the Court in its discretion has not

awarded costs on the basis of public interest.   For instance, cases involving the

1      Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2358, 13 October

2009 at [9].

2      New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993 at [10].

3      New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at p 17.

legality of fluoridation,4  and the status of Maori language as taonga,5  have come within that category.  In contrast to the positions of the plaintiffs in those cases, the Andersons were not representing any public interest group in this proceeding.

[6]      As a second argument in opposition to costs the Andersons say the defendants caused an extra hearing.  The Andersons had sought interim orders preventing the owners from making any disposition of the land, and also sought interim restraints on any use of the resource consent.  The plaintiffs argue that the second and third defendants should have consented to those interim orders at the outset, and instead they delayed providing that consent until the application for interim orders was part- heard. They claim that the costs of that wasted hearing should lie where they fall.

[7]      I  do  not  accept  this  submission.     The  Andersons  have  failed  in  this proceeding.  They should not have been seeking interim orders at all, and can hardly complain because  any consent to interim orders was late, given that  the orders should not have been sought in the first place.   There is nothing in the material before me to indicate significant unreasonableness in the position of any of the defendants in the procedural stances that they have taken throughout.  In the absence of any significant fault on the part of defendants, for instance  wilful failure to properly discover, the Court will not sift through interlocutory steps to see if one step or  another  step  by  the  party  that  was  ultimately  successful  might  have  been proceeded with more efficiently.  The defendants here were put to various costs by an action brought by the plaintiffs that has proven to be unsuccessful.  The plaintiffs must pay their full costs on the usual scale basis, and I make no deduction of costs under this head.

[8]      Finally, the plaintiffs dispute the second and third defendants claim to seek recovery of the costs of Cedric Owen Burn, an expert.  Mr Burn filed two affidavits. It is argued that the costs of Mr Burn are out of kilter with the other experts’ costs.

[9]      I have not had any response to the objection to the size of Mr Burn’s fee from

the second and third defendants.   His fee, claimed as a disbursement, is a total of

4      New Health New Zealand Inc v South Taranaki District Council, above n 2.

5      New Zealand Maori Council v Attorney-General, above n 3.

$5,382.  In contrast the other fee of Philip Brown is $1202.91.  Mr Burn’s affidavits are short.  They do not appear to cover a great deal more than Mr Brown’s.  It seems to me therefore that there is force in the objection that Mr Burn’s fee is too high and should be more in line with that of Mr Brown.

[10]     In all the circumstances a disbursement of $2,000 only is allowed in respect of Mr Burn’s fees.

[11]     Save for that alteration the defendants are entitled to costs on a 2B basis and disbursement as set out in the memoranda filed by first defendant on 10 July 2014 and the second and third defendants on 11 July 2014.

……………………………..

Asher J