Bailey v Auckland Council - [2023] NZHC 3146

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1801

[2023] NZHC 3146

BETWEEN
GORDON MARTIN ROSS BAILEY

First Plaintiff

COOPER SCIENCE CONSULTING LIMITED
Second Plaintiff

AND

AUCKLAND COUNCIL

First Respondent

JOHN BARRY BOLLAND and JUSTIN MARK JAMES WYBOURN

Second Respondents

Hearing: On the papers

Counsel:

A J Sherlock for the Plaintiffs L Bielby for First Respondent

D M Salmon KC and R M Keane for Second Respondent

Judgment:

10 November 2023

JUDGMENT OF ANDERSON J

(Costs on discontinuance)

This judgment was delivered by me on 10 November 2023 at 10:00 am pursuant to Rule 11.5 of the High Court Rules 2016.

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

Solicitors: Hesketh Henry, Auckland
Lee Salmon Long, Auckland

BAILEY v AUCKLAND COUNCIL [2023] NZHC 3146 [10 November 2023]

Introduction

[1] This is an application regarding the incidence of costs on discontinuance as between the plaintiffs and the first respondent (the Council). The proceeding related to the second respondents’ proposed development of a swimming pool, cabana and boat shed plus related works at their Herne Bay property. The Council had decided that resource consents for the works could proceed on a non-notified basis. The works were to include, among other things, the second respondents completing earthworks and pruning the branches of pōhutukawa trees.

[2] The first plaintiff, Mr Bailey, is the registered owner as bare trustee of a neighbouring property. His company, Cooper Science Consulting Ltd (the second plaintiff) held the benefit of an encumbrance over the second respondents’ property relating to protection of existing native trees. By applications dated 22 September 2022, the plaintiffs sought to enforce that encumbrance against the second respondents and judicially review the Council’s limited notification decision with respect to the resource consents for the boat shed and related works.

[3] On 12 October 2022, Duffy J granted the plaintiffs’ application for an interim injunction preventing the second respondents from undertaking or progressing the proposed works and any cutting of pōhutukawa trees.1 The Council was not heard on this application.

[4] Amended pleadings were filed at the end of 2022 which included a challenge to the Council’s public notification decision in relation to the boat shed and related works and a challenge to the Council’s limited notification decision for grant of consent to a new swimming pool and cabana.

Discontinuance

[5] On 4 September 2023, the plaintiffs filed a notice of discontinuance. The plaintiffs advise that the sole reason for the discontinuance is that the first plaintiff has entered into an unconditional sale and purchase agreement with an unrelated third

1 Bailey v Auckland Council [2022] NZHC 2632, (2022) 23 NZCPR 739.

party for the sale of his property. There is no issue as to costs between the plaintiffs and the second respondents. The plaintiffs and the Council have been unable to agree costs.

[6] The plaintiffs seek an order that costs should lie where they fall. The Council seeks an order that the plaintiffs pay scale costs on a 2B…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bailey v Auckland Council

Details

AGLC: Bailey v Auckland Council [2023] NZHC 3146
Case: [2023] NZHC 3146
Decision Date: 10 November 2023

CaseChat Overview and Summary

In Bailey v Auckland Council, the plaintiffs sought to enforce an encumbrance relating to the protection of existing native trees against the proposed development by the second respondents, and to challenge the Council's limited notification decision for the resource consents. The plaintiffs filed a notice of discontinuance, citing the first plaintiff's sale of his property to a third party as the reason for discontinuing the proceedings. The court was required to determine the incidence of costs on discontinuance between the plaintiffs and the Council.

The primary legal issue was whether the presumption under Rule 15.23 of the High Court Rules 2016, which states that on discontinuance, the plaintiff must pay the defendant costs, should be displaced. The plaintiffs argued that they had discharged the onus to rebut the presumption and that it was just and equitable for costs to lie where they fell. They submitted that the merits of their case were immediately apparent and that the proceeding was rendered unnecessary by a supervening event. The Council, on the other hand, argued that the plaintiffs had not discharged the onus to rebut the presumption and that the default rule should apply.

The court held that the plaintiffs had not successfully displaced the presumption in Rule 15.23. It found that the discontinuance did not fall into the categories where the presumption is typically displaced, such as when a defendant’s actions render the litigation unnecessary or when an intervening governmental or third party decision makes the proceeding redundant. The court noted that the plaintiffs had initiated the sale of the property and discontinued the proceedings, which was not an external event or the consequence of an action by a third party. The court also considered that the merits of the case were not so obvious as to impact the costs outcome. Therefore, the court concluded that it was appropriate for the default position in Rule 15.23 to apply, and the plaintiffs should pay the Council costs on a 2B basis.

The final order of the court was that the plaintiffs are to pay to the first respondent, the Council, costs in the sum of $14,101.

Orders