Ayrburn Farm Developments Limited v Queenstown Lakes District Council

[2016] NZHC 997

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2015-425-000090 [2016] NZHC 997

BETWEEN

AYRBURN FARM DEVELOPMENTS

LIMITED Applicant

AND

QUEENSTOWN LAKES DISTRICT COUNCIL

Respondent

Hearing:	Dealt with on the papers
Counsel:	J Hodder QC for Applicant NMH Whittington and A Linterman for Respondents
Judgment:	17 May 2016

JUDGMENT OF GENDALL J (As to Costs)

[1]      In a judgment I issued in this proceeding on 14 April 2016 I dismissed the plaintiff’s application for judicial review.  In doing so I indicated at para [84] of that judgment that as the successful party here, the Queenstown Lakes District Council was entitled to an award of costs. At that paragraph [84] I went on to add:1

[84]     …if counsel [are] unable to resolve that question of costs between them, then they may file memoranda (not to exceed 10 pages) sequentially and, in the absence of either party indicating they wish to be heard on the issue of costs, I will decide that question based upon the memoranda and the material then before the Court.

[2]      It appears that counsel have been unable to resolve the issue of the quantum of costs to be awarded.  Counsel for the Queenstown Lakes District Council has filed a  memorandum  on  costs  dated  28  April  2016  and  counsel  for  Ayrburn  Farm

Developments Limited has replied with his memorandum dated 10 May 2016.

1 Ayrburn Farm Developments Ltd v Queenstown Lakes District Council [2016] NZHC 693.

AYRBURN FARM DEVELOPMENTS LIMITED v QUEENSTOWN LAKES DISTRICT COUNCIL [2016] NZHC 997 [17 May 2016]

[3]      I  have  now  had  an  opportunity  to  consider  those  memoranda.    Neither counsel indicate they wish to be heard personally on the issue of costs and I give my decision based on the memoranda and the material before the Court.

[4]      In his memorandum dated 28 April 2016 counsel for the Queenstown Lakes District Council seeks an award of costs and disbursements totalling $36,459.  The costs award is calculated on the basis of scale costs at category 2C for “preparation for hearing” steps and category 2B for all other steps. An allowance is also made for second counsel.

[5]      Counsel   for   Ayrburn   Farm   Developments   Limited   responds   in   his memorandum of 10 May 2016 indicating that the only difference between the parties relates to the categorisation of “preparation for hearing” where he submits category

2B is appropriate rather than category 2C as claimed by counsel for Queenstown Lakes  District  Council.    Accordingly,  counsel  for Ayrburn  Farm  Developments Limited contends that a total costs award for all steps at category 2B plus disbursements should be $30,884 as opposed to the $36,459 sought by counsel for Queenstown Lakes District Council.

[6]      I turn now to consider this sole point of difference which is the appropriate costs categorisation for “preparation for hearing” of this matter.

[7]      So  far  as  this  is  concerned,  counsel  for  the  Queenstown  Lakes  District Council in his memorandum begins by noting that this was a first judicial review application under the Housing Accords and Special Housing Areas Act 2013.   He acknowledged however that, although this did not substantially increase the complexity of the proceeding, it did significantly increase the preparation time for this hearing.

[8]      Accordingly, in terms of r 14.5(2)(c) High Court Rules, counsel for the Queenstown Lakes District Council maintained that a “comparatively large amount of time” (as specified in band C) was required to prepare for this hearing because:

(a)      Although initially the matter was to have a two day hearing and, with the imminent expiry of the Housing Accords and Special Housing Areas Act 2013, hearing time was reduced to one day, it is claimed this  did  not  reduce  the  time  counsel  required  to  prepare  for  the hearing.

(b)In comparison with average judicial review proceedings, counsel contended that this proceeding was significant in that as mentioned it was the first to focus on the purpose of the Housing Accords and Special  Housing Areas Act  2013  and  there had  been  no  previous authorities on point to assist.  Counsel says therefore that preparation for trial required a lengthy review of Parliamentary and other material.

(c)      Lastly, counsel for the Queenstown Lakes District Council maintained that  the  approach  of  the  plaintiff  to  this  case  was  extensive.    It involved challenging not only the Council’s 3 June 2015 decision but also  the  lawfulness  of  the  Council’s  “lead  policy”  adopted  in October 2015, and the evaluation process undertaken by Council staff. This, it is said, included a challenge to a draft version of the officer’s report which was a report not actually seen by the decision-maker. All these matters it is suggested substantially increased the preparation time required for the hearing.

[9]      Counsel for the Queenstown Lakes District Council also contended that these matters actually increased the time required for other steps in this proceeding. Included in this were preparation of the statement of defence and bundles of documents and authorities, but counsel’s claim for band 2C costs was limited in that it related to one step only, that being for “preparation for trial” here.

[10]     On these matters, counsel for Ayrburn Farm Developments Limited responds as follows:

(a)      As to the hearing time allocated, ideally this would have been for a little over one day but the fact that it was reduced to a single day

encouraged a focus for parties’ argument and limited preparation to the central statutory interpretation and application issues.

(b)The present judicial review application was no more significant nor complex than many such applications which are before this Court; and

(c)      With this in mind, counsel noted that almost all judicial review applications do involve a challenge to the application of statutory powers and this case was no different.   This, however, did not necessitate the case being classified as other than one involving the usual category 2B costs scale.  Thus the claim for category 2C costs for preparation was unwarranted here.

[11]     Turning now to my assessment in this matter, at the outset I note that the approach by counsel for Queenstown Lakes District Council in differentiating and seeking a different costs band of category 2C only for one step here does accord with the proper approach commonly taken under the High Court Rules.   On this, McGechan on Procedure at para HR14:5.01 dealing with time bands states:

HR14.5.01      The time bands

…

The bands may differ at each step.  A blanket assessment for banding does not accord with the Rules, unless it reflects that the case is an average one requiring a normal amount of time for each step: Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400…

[12]     I note also that counsel for Ayrburn Farm Developments Limited does accept that an allowance should be made for second counsel in this case.  It is clear too that, although the seniority and experience of counsel is not a determining factor in any costs award, the plaintiff in this case did consider it necessary to brief  experienced senior counsel to act on its behalf in this proceeding.

[13]     Weighing up all these factors and taking into account the matters advanced before  me  by  counsel  for  Queenstown  Lakes  District  Council  and  counsel  for Ayrburn Farm Developments Limited I am of the view that in this case a comparatively large amount of time would have been required to prepare for the

judicial review hearing and accordingly an order for costs here on a category 2C basis for “preparation for hearing” is appropriate.  Otherwise, as the parties agree, costs on a category 2B basis for all other steps including an allowance for second counsel should be awarded. An order for costs is to be made on this basis.

[14]    Queenstown Lakes District Council is entitled to an award of costs and disbursements on this proceeding totalling $36,459 (as itemised in the schedule attached to the memorandum from its counsel dated 28 April 2016).

[15]     Ayrburn Farm Developments Limited is ordered to pay to Queenstown Lakes District Council (as the successful party here) costs and disbursements on this proceeding totalling $36,459.

...................................................

Gendall J

Solicitors:

Anderson Lloyd, Queenstown

Meredith Connell, Auckland