Aotearoa Water Action Inc v Canterbury Regional Council
[2021] NZHC 48
•2 February 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000121
[2021] NZHC 48
BETWEEN AOTEAROA WATER ACTION INCORPORATED
ApplicantAND
CANTERBURY REGIONAL COUNCIL
First Respondent
AND
CLOUD OCEAN WATER LIMITED
Second Respondent
AND
RAPAKI NATURAL RESOURCES LIMITED
Third Respondent
AND
NGĀI TŪĀHURIRI RŪNANGA
Non-Party
Hearing: On the papers Counsel:
P A Steven QC and R E Robilliard for the Applicant
P A C Maw and L F de Latour for the First Respondent W A McCartney and L I Fox for the Second Respondent E J Chapman and J A Robinson for the Third Respondent J M Appleyard for the Ngāi Tūāhuriri Rūnanga
Judgment:
2 February 2021
JUDGMENT OF NATION J AS TO COSTS
[1] In judicial review proceedings, Aotearoa Water Action Incorporated (the Group) challenged the process by which Rapaki Natural Resources Limited (Rapaki) and Cloud Ocean Water Limited (Cloud Ocean) acquired resource consents from the
AOTEAROA WATER ACTION INC v CANTERBURY REGIONAL COUNCIL [2021] NZHC 48 [2 February 2021]
Canterbury Regional Council (the Council), giving them the right to take and use water for commercial bottling purposes.
[2] In a judgment of 8 July 2020, I denied the Group’s application for relief under the Judicial Review Procedure Act 2016 and made a declaration as sought by the Council.1 I expressed a tentative view that all respondents were entitled to costs but said, if there was no agreement, I would determine costs on the papers.
[3]The Group filed an appeal with the Court of Appeal on 5 August 2020.
[4] The Council seeks costs of $40,909.76 as against only the Group on the basis the Council was successful on all issues raised by the Group in the proceedings. Costs are sought generally on a 2B basis but on a band C basis for the commencement of the defence. The Council also seeks increased costs for an additional day’s preparation for the hearing, an increase of $2,390.
[5] Cloud Ocean and Rapaki both seek costs on a 2B basis of $28,739.75 each plus disbursements of $220.
[6]I deal with the issues that emerge from counsels’ memoranda.
Increase in time allocation for certain steps and increased allowance for preparation
[7] There is agreement that costs are to be awarded on a category two basis. The proceedings were categorised accordingly in a minute of Nicolas Davidson J.2 The Council seeks costs on a band C basis for step two commencement of defence and an additional day at a category two recovery rate under step 32 for preparation for the hearing.
[8] The Group oppose the uplift to band C for the requested steps on the basis the proceedings had been categorised as category two. An increase to a C allocation for
1 Aotearoa Water Action Inc v Canterbury Regional Council [2020] NZHC 1625, [2020] NZRMA 580.
2 Aotearoa Water Action Inc v Canterbury Regional Council HC Christchurch CIV-2018-409-121, 1 June 2018 at [4].
certain steps at a late stage would be unfair to the Group and derogate from the principle that the determination of costs should be predictable and expeditious. The Group suggested the complexity of the claim, and thus the time required to deal with it, was a consequence of the unorthodox procedure the Council adopted in issuing amalgamated consents.
[9] I consider the factual and legal issues which had to be addressed, given the basis on which the Group was challenging the lawfulness of the Council’s decision, were such that a band C allowance is appropriate for the particular steps for which such an allowance is sought by the Council.
[10] I note that, when Nicolas Davidson J recorded the proceedings as category two, he did not say costs would be on a 2B basis. He also acknowledged the potential for costs to be awarded on more than a category two basis, by recognising the possibility that, as matters emerged, category three might have to be considered.
[11] The Group was successful on the application over the preliminary determination. The Group sought and obtained an order for costs.3 I note those costs were fixed on a 2B basis but with band C to apply for filing interlocutory application/preparation of written submissions/preparation by applicant of bundle for hearing.
Uplift for preparation
[12] The Council make a claim for increased costs for preparation of written submissions. They say, in their submissions, they had to deal with issues from the Group’s statement of claim which were not supported in submissions for the Group but which were not formally abandoned. The request for increase is made on the basis the Group pursued arguments which lacked merit.4
[13] On a band C basis, the allowance for that step in the proceedings is three days. Application is made for an increase on that of one day, at category two, $2,390.
3 Aotearoa Water Action Inc v Canterbury Regional Council [2019] NZHC 1191.
4 High Court Rules 2016, r 14.6(3)(b)(ii).
[14] The increase is sought in respect of issues that were considered in paras [241] to [259] of the judgment.5 I noted the Group made no submissions in support of issues raised in their pleadings. On those issues, I accepted the submissions made for the Council.
[15] The Group submits there should be no uplift for preparation because, consistent with correspondence, the Group advised the Council it needed to respond only on issues addressed in submissions for the Group.
[16] The Group’s main challenge to the Council’s processes was that the Council had acted unlawfully in considering the applications as applications for consent to a change of use and not for consent to a combined take and use.
[17] The further issues the Council had to address were issues on which the Group challenged the reasonableness and lawfulness of the Council’s decisions, even if the Council acted lawfully in dealing with the applications as being for consent to a change in use. The Council thus had to address these further issues as they were not formally abandoned.
[18] On 7 November 2019, solicitors for the Council emailed counsel for the Group. They noted the relevant particular pleadings had not been addressed in submissions for the Group. The Council’s solicitors asked if those grounds of challenge were being pursued or abandoned to avoid the Council having to address them in submissions if that was unnecessary.
[19] The following day, counsel for the Group advised that only one matter was being abandoned. It was asserted the remaining matters were “encompassed” in the grounds addressed in legal submissions for the Group. Counsel went on to say the key point was there were no take applications in front of the Council so the Council had not adequately considered the effects of a take. Ms Steven QC concluded by saying “[a]ccordingly, you are only required to address the matters raised in [her] submissions”.
5 Aotearoa Water Action Inc v Canterbury Regional Council, above n 1.
[20] Counsel however had asserted the issues raised in the pleadings were encompassed in the grounds addressed in her submissions. They thus had to be addressed separately by the Council. As I noted in my judgment, this was done with care. There was no response to those submissions by way of reply from the Group.
[21] The Council gave the Group the opportunity to say it was not separately relying on those grounds or criticisms referred to in the pleadings in challenging the lawfulness of the Council’s decision-making process. They chose not to do this but effectively did not seek to support those grounds at the hearing.
[22] In these circumstances, it can be said the Group raised issues without merit and put the Council to unnecessarily work and expense which could have been avoided. I accordingly allow an increase in the costs for preparation for the hearing in the manner sought by the Council.
Should there be any discount of the costs award for Cloud Ocean and Rapaki?
[23] It is not suggested these parties are not entitled to costs. The Group suggests the costs they seek should be discounted by 50 per cent because of their lesser role in the proceedings.
[24] Rapaki and Cloud Ocean were reasonably and properly engaged in the proceedings. Their commercial interests were directly affected by the issues in the proceedings. The Council however had the major role in defending its decision- making process. It did so comprehensively, meaning the legal work required of Cloud Ocean and Rapaki’s advisers was correspondingly reduced. This was the expectation of Nicolas Davidson J as expressed in his minute of 4 May 2018.6
[25] The Council did not require security for costs. The Group agreed to provide security for costs for Cloud Ocean and Rapaki of $13,800 each (a total of $27,600). An order was made to that effect by Nicolas Davidson J on 29 May 2018.
6 Aotearoa Water Action Inc v Canterbury Regional Council HC Christchurch CIV-2018-409-121, 4 May 2018 at [11]-[14].
[26] I note that, as to the determination of the preliminary question on which the Group had been successful, the Group sought a total award of costs of $28,533.11, 50 per cent from the Council and 25 per cent from each of Cloud Ocean and Rapaki.7 Churchman J held costs of $22,958.11 should be awarded to the Group, such costs to be apportioned equally amongst the respondents.
[27] The lesser role Cloud Ocean and Rapaki had in the substantive proceedings was reflected in the way, at the hearing, they each adopted the submissions made by the Council and did not have to make extensive submissions material to their particular positions. Nevertheless, at particular stages of the proceedings, I accept their legal representatives would have had to engage fully in identifying the grounds on which the Group had brought proceedings, and the nature and particulars of the Council’s response.
[28] It was appropriate for them to be represented throughout the hearing but they did not need to be represented by two counsel.
[29] I accordingly hold Cloud Ocean and Rapaki are entitled to costs as set out in the schedule in the memorandum for Rapaki but, as to steps 30 and 32, the costs will be one third of the amount claimed. There is to be no allowance for second counsel.
[30] That will result in an award for each of those parties of $17,088.50. In addition, they will be entitled to disbursements of $220, in total an award of $17,308.50 for each of those parties.
Discounting of costs for the Council on the basis of public interest issues in the proceedings
[31] As a general principle, the party who fails in a proceeding should pay costs to the party who succeeds.8 As counsel for the Group pointed out, in arguing whether time allocated for certain steps should be on a category C basis, the determination of costs should be predictable and expeditious. Consistent with that, an incorporated society that chooses to bring litigation in support of a particular cause should expect
7 Aotearoa Water Action Inc v Canterbury Regional Council, above n 3.
8 High Court Rules, r 14.2(1)(a).
that, if they are unsuccessful in the proceedings, it is likely they will have to pay costs in accordance with the normal rules.
[32] Rule 14.7 allows that principle to be departed from. The Court may refuse to make an order for costs or reduce the costs otherwise payable under rr 14.2 to 14.5 if “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.9
[33] For the rule to apply, the proceedings must have had merit and involved a matter of public interest and importance beyond the interests of the particular unsuccessful litigant, who must also have acted reasonably in the conduct of the proceedings.10
[34] The Group submitted there should also be a discount of 50 per cent on the costs award for the Council. The Group says it is a not for profit group. The proceedings were brought not for financial gain but because of issues of genuine public interest and the Council, in its regulatory role under the Resource Management Act 1991 (RMA), was exercising powers in the nature of public law.
[35] In its submissions, the Council accepted the case raised matters beyond the interests of the Group but argued the Group here was not representing the interests of ratepayers as a whole. The Council submitted it would not be fair for all ratepayers across the Canterbury region to have to bear the cost of a reduction from what would otherwise be an appropriate award of costs in the Council’s favour.
[36] The Council submitted, alternatively, if there was to be a discount because of matters of public interest, that discount should be no more than 10 per cent, consistent with the judgment of the High Court in Brook Valley Community Group Inc v Brook
9 Rule 14.7(e).
10 Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR14.7.01(c)]; Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9] affirmed New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [11].
Waimarama Sanctuary Trust and a judgment of the High Court, upheld by the Court of Appeal, in Coro Mainstreet (Inc) v Thames-Coromandel District Council.11
[37] In Ratepayers and Residents Action Association Inc v Auckland City Council, the Court of Appeal had to consider whether it was appropriate to require an incorporated society to provide security for costs, and the quantum of the award on an application of r 60 of the then High Court Rules (now rr 5.45(1)(b) and 5.45(2)), and s 17 Incorporated Societies Act 1908.12 The Court said, in exercising its discretion, a Court “…in the interests of justice in the particular case must have regard to any public interest considerations which the litigation serves”.13 They referred to the way public interest community organisations can perform a valuable public service as watchdogs of the public interest and of the importance of allowing such groups access to the courts to responsibly challenge administrative decisions. The Court held it was appropriate to require security for costs but reduced the sum required from a total of
$30,000 stipulated in the High Court to $15,000. There was no indication in that judgment an incorporated society pursuing a claim, which it considered to be in the public interest, would not be liable for costs if ultimately unsuccessful in the proceedings.
[38] Referring to National Bank of New Zealand Limited v Donald Export Trading Ltd,14 the Court noted the amount fixed as security was not intended to be a pre- estimate of the actual amount of party costs that might become payable should the case go to trial and the defendant succeed in its defence.15
[39] There have been cases where courts have refused to make an order for costs against a party which has been unsuccessful in pursuing a claim in, what the court held to be, the public interest.16
11 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2018] NZCA 573, [2019] NZRMA 340; Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1527 at [10] affirmed Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73 at [72].
12 Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 (CA) at 749.
13 At 750.
14 National Bank of New Zealand Limited v Donald Export Trading Ltd [1980] 1 NZLR 97 (CA).
15 Ratepayers and Residents Action Association Inc v Auckland City Council, above n 12, at 750.
16 For example New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993, (2014) 21 PRNZ 766 – judicial review proceedings over the Council’s decision to add fluoride to
[40] In their submissions here, the Group referred to a High Court judgment in the New Zealand Maori Council v Attorney-General (No 3) as supporting its position.17 There, the Court made an order for costs in favour of Māori plaintiffs where the Court held they had been successful through a settlement. I assume that judgment was referred to in error.
[41] In New Zealand Maori Council v Attorney-General, the Privy Council made no order for costs against the unsuccessful appellant.18 The Privy Council said the proceedings were not brought out of any motive of personal gain. The appellants were pursuing the proceedings in the interests of Taonga which they said was an important part of the heritage of New Zealand. The appeal was important to enable the Privy Council to address an undesirable lack of clarity in an important area of law that had resulted from different views expressed in the Court of Appeal. I note also the respondent to the appeal was the Crown and not a body funded by ratepayers.
[42] In Taylor v District Court at North Shore, the Court held the Crown was not entitled to costs on a 2B basis where they had been successful in resisting applications for declarations made by Mr Taylor through judicial review proceedings.19 The Judge refused to make an order for costs against Mr Taylor, noting the proceedings did concern a matter of genuine public interest and Mr Taylor had acted reasonably in the conduct of the proceedings.20 It was however significant to that decision that the Judge considered Mr Taylor was successful in respect of the matter of public interest raised in the proceedings.21
[43] On occasions, an award of costs, which a successful party might otherwise have been entitled to, has been reduced because of the public interest aspect of the proceedings.22
town water supplies; New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2 NZLR 13; New Zealand Maori Council v Attorney-General [1994] 1 NZLR
513 (PC) at 524-525.
17 New Zealand Maori Council v Attorney-General (No 3) HC Wellington CP942/88, 28 April 1995.
18 New Zealand Maori Council v Attorney-General, above n 16.
19 Taylor v District Court at North Shore (No 2), above n 10.
20 At [12]b).
21 At [12]c).
22 For example Titahi Bay Residents Association Inc v Porirua City Council HC Wellington CIV 2007-485-1933, 18 October 2007; Royal Forest and Bird Protection Society of New Zealand Inc v Kapiti Coast District Council, HC Wellington CIV-2007-485-635, 5 February 2008.
[44] In this context, the Court has, on occasions, considered it would be unfair to ratepayers generally to bear the burden of a reduction in an otherwise appropriate costs award.
[45] In Te Rangatiratanga O Ngati Rangitihi Inc v Bay of Plenty Regional Council, the appellant society had been unsuccessful in an appeal against a decision given by the Environment Court.23 Wylie J in the High Court held three companies that were respondents in the proceedings were entitled to reasonable costs and disbursements. He was asked to revisit that determination. Wylie J accepted the appeal concerned a discharge that affected the community as a whole including local iwi. He said:24
Where an appeal raises a genuine matter of public interest, the Court may decline to award costs or it may reduce the costs award it might otherwise have made – r 14.7. However, as was noted by Simon France J:25
… the liability for costs remains a legitimate incentive for ensuring that challenges have a sound basis …
[46]Wylie J concluded:
[10] Notwithstanding the public interest factor, in the circumstances of this case I am not persuaded that it would have been appropriate to decline awards of costs to the applicants and the respondent [the successful parties]. In the respondents’ case, were costs to be declined, they would simply fall on the general body of ratepayers. To my mind, that would hardly be fair.
[47] In Evans v Clutha District Council, the Court awarded costs against an individual supported by a small group of ratepayers who brought judicial review proceedings challenging a decision by the Clutha District Council to remove certain trees from a reserve.26 In that decision, I said:
[9] The challenge in Court was against a decision of the Council, the elected representatives of the whole community. The costs the Council incurred in successfully opposing the proceedings were costs incurred by the whole community of ratepayers. In these circumstances, I consider it remains appropriate to give effect to the principle that the successful party is entitled to costs.
(footnote omitted)
23 Te Rangatiratanga O Ngati Rangitihi Inc v Bay of Plenty Regional Council HC Tauranga CIV- 2010-470-936, 17 February 2011.
24 At [7].
25 Titahi Bay Residents Association Inc v Porirua City Council, above n 22.
26 Evans v Clutha District Council [2019] NZHC 549.
[48] The residents were unsuccessful on their appeal. The Court of Appeal held the Clutha District Council was entitled to costs for a standard appeal on a band A basis and the usual disbursements.27
[49] In Brook Valley, the High Court adopted or referred to many of the findings in Coro Mainstreet, including the fact that a discount (greater than 10 per cent) was refused on the basis that any reduction would fall on ratepayers and shareholders.28 This was ultimately upheld by the Court of Appeal.29
[50]I accept the Group was not pursuing the proceedings for financial gain.
[51] I accept there was an element of public interest in the Group’s claim as the public in Christchurch have an interest in ensuring a quality water supply is available to the residents from the aquifer that lies beneath Christchurch. However, the way the Council dealt with the applications did not result in any increased allocation of water from the aquifer above allocations that had already been consented. It was not suggested the changed water use authorised by the Council with its decision would adversely affect the quality of water that could be obtained from the Christchurch aquifer.
[52] The Group’s real concern related not to the fact water was being taken from the aquifer but to the fact the water would be bottled and for sale overseas. A witness for the Group stated the Group focussed on “water sovereignty” and the expansion of water bottling in New Zealand.30 In the High Court’s preliminary determination, the Court had confirmed the fact water was to be sold overseas was not a matter relevant to the RMA.31 To the extent the Group was pursuing judicial review to uphold concerns over the sovereignty of water, they were using the proceedings for their own agenda rather than to protect the public interest which could properly be a concern under the RMA.
27 Evans v Clutha District Council [2020] NZCA 5 at [45].
28 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZHC 2665, [2018] NZRMA 162 at [19]-[20] citing Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 11, at [10].
29 Coro Mainstreet (Inc) v Thames-Coromandel District Council, above n 11, at [72].
30 Aotearoa Water Action Inc v Canterbury Regional Council, above n 1, at [19].31 Aotearoa Water Action Inc v Canterbury Regional Council [2018] NZHC 3240, (2018) 20 ELRNZ 793 at [43].
[53] The Group’s challenge to the Council’s processes primarily depended on the Court accepting that relevant statutory provisions did not allow a Council to deal with an application for a change of use without reconsidering the already consented take to which that use related. The Court has held that interpretation was inconsistent with the wording of relevant statutory provisions. Although there was no authority directly on point, this may well have been because the contended interpretation was inconsistent with the plain meaning of the relevant statutory provisions and with the way those provisions had been applied in the past. The Group’s challenge to the Council’s processes was thus a bold one which the Court has found to be without merit.
[54] The process adopted by the Council in amalgamating an existing take consent with the new approved use consents was novel but the Court has held it was an administrative step only which did not materially affect the rights established with the original take consents and the new change of use consents.
[55] I note also the claim was brought not just on the basis the Council had made an error in the way it had applied particular provisions of the RMA. It was suggested the Council’s processes, including the amalgamation, was a “contrivance”, intentionally adopted to avoid the requirements of the RMA.32 That claim was made without merit.
[56] As already referred to, the Group also claimed the decisions ultimately made by the Council were unlawful and unreasonable for reasons which the Group did not seek to substantiate at the hearing.
[57] With the judgment obtained, it cannot be said that, in all respects, the proceedings had merit and the Group “acted reasonably in the conduct of the proceedings”.33
[58] There was a real risk that, when the Group instituted these judicial review proceedings, they might not be successful. With the costs regime provided in the High
32 Aotearoa Water Action Inc v Canterbury Regional Council, above n 1, at [138].
33 High Court Rules, r 14.7(e). Of course, if the Court of Appeal disagrees with the judgment that has been given, this decision as to the merits of the Group’s claim and the costs order made in this Court would have to be reviewed.
Court Rules, they should have known they would be at risk of having to pay substantial costs if they were unsuccessful in the proceedings. That has eventuated.
[59] The Council is not seeking a costs order to deter the Group from pursuing the proceedings. It did not seek security for costs against the Group when the proceedings began. In a similar vein, it abided the decision of the Court as to whether leave should be granted to Ngāi Tūāhuriri Rūnanga to intervene in the proceedings.
[60] Weighing all these matters, I recognise the way in which the proceedings did involve a matter of public interest and there was some value in the circumstances of this case in the Court scrutinising, through judicial review proceedings, the legality of the Council’s processes. The costs I have ruled to be otherwise appropriate are to be discounted by 10 per cent on account of such factors.
Deferment of payment of costs pending appeal
[61] The Group asked that I suspend the determination of costs pending an appeal. By a minute of 11 September 2020, I refused to do so but said the Group could seek a deferment of costs pending the appeal in their costs memoranda.34
[62] The Group seeks a deferment of payment of costs until after the appeal has been heard because the prospects of the Group succeeding on appeal cannot be discounted. If the appeal is successful, any award of costs in the High Court will have to be revisited. The Group submitted that, if an award of costs is made in the total sum sought by the respondents, it would be for a considerable sum, particularly for a “not for profit” society to pay.
[63] The Council says there should be no deferral. It submits any costs should be paid at the time an award is determined to ensure the Council and its ratepayers are out of pocket for its recoverable litigation costs for the minimum time.
34 Aotearoa Water Action Inc v Canterbury Regional Council HC Christchurch CIV-2018-409-121, 11 September 2020.
[64] The Council noted that in Evans v Clutha District Council the High Court did not delay either the determination of costs or the time for payment on the basis the judgment obtained by the Council was under appeal.35
[65] Counsel for Cloud Ocean filed a memorandum in reply opposing deferral of payment. Cloud Ocean submit the only real ground on which deferral is sought is that an appeal has been filed. Cloud Ocean submit that is not a reason for deferral given the explicit rule that the fact an appeal has been filed is not a ground for a stay of execution.
[66] Rapaki supported the submissions that had been presented for both the Council and Cloud Ocean.
[67] Rule 12 Court of Appeal (Civil) Rules 2005 expressly provides that an appeal does not operate as a stay of execution.
[68] As stated in McGechan on Procedure, one purpose of r 14.2(g) is that costs should be calculated and agreed promptly, “so that the party entitled to them is out of pocket for its recoverable litigation costs for the minimum time”.36
[69] It is not suggested the Group will be unable to pursue its appeal if it has to pay costs in accordance with the orders being made now. There is no evidence before the Court to suggest this will be a consequence of a costs order. A solicitor for the Group has stated publicly that the Group has raised more than $50,000 from public donations to cover Court proceedings.37 The Christchurch City Council also provided a grant of
$50,000 in 2019 for the High Court proceedings.38
[70] The amount paid into the Court as security for costs of $27,600 will be available to the Group now to assist in the payment of costs.
35 Evans v Clutha District Council, above n 26.
36 Andrew Beck and others (eds) McGechan on Procedure, above n 10, at [HR14.2.01(7)(c)].
37 The Press (online ed, Christchurch, 18 December 2020).
38 The Press, above n 37.
[71] If the Group’s appeal is successful and if costs awarded in favour of the Council, Cloud Ocean and Rapaki are reversed, there is no evidence the respondents would be unable to repay the costs which they receive.
[72] Cloud Ocean and Rapaki both own the land associated with the resource consents granted in their favour. Should they not meet any costs award that might ultimately be made if an appeal is successful, it could be expected there would be statutory demands for payment and the likelihood of liquidation if those demands were not met.
[73] There is no reason to think the Council would not repay the costs it had received if it is required to do so.
[74] The Supreme Court and Court of Appeal have emphasised the importance of the general principle in the High Court Rules that the party who fails with respect to a proceeding should pay costs to the party who succeeds unless the circumstances are exceptional.39
[75]In Clayton v Currie, the High Court stated:40
Under the High Court Rules, the general principle is that "the party who fails with respect to a proceeding . . . should pay costs to the party who succeeds". The fact that an appeal has been brought does not change the rights of the parties. Although the Courts have a general power to stay execution, this power is not to be abused so as to delay payment.
[76] I accordingly decline the Group’s request for a direction deferring payment of the costs as ordered until the appeal has been determined.
Costs on these issues
[77] I have had regard to the issues I had to consider in dealing with costs, the submissions required from all parties and the circumstances of each party in the
39 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]-[8] citing Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt Ltd) (2002) 16 PRNZ 662 (CA) at [27].
40 Clayton v Currie [2018] NZHC 2544 at [4] (footnotes omitted).
context of a pending appeal. All parties are to bear their own costs relating to this determination of costs issues.
Solicitors:
P A Steven QC, Barrister, Christchurch Linwood Law, Christchurch
Wynn Williams, Christchurch Carson Fox Law, Auckland Duncan Cotterill, Christchurch Chapman Tripp, Christchurch.
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