Cattell v Auckland Council

[2018] NZHC 733

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-1730

[2018] NZHC 733

BETWEEN

CLEMENT GILLIBRAND CATTELL and

DEANNA PHYLLIS CATTELL (as trustees of the Deanna Phyllis Family Trust)

Plaintiffs

AND

AUCKLAND COUNCIL

Defendant

Hearing:	On the papers
Appearances:	D Bigio QC and A Steel for Plaintiffs F Divich and K Perry for Defendant
Judgment:	19 April 2018

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 19 April 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CATTELL v AUCKLAND COUNCIL [2018] NZHC 733 [19 April 2018]

[1]    On 7 March 2018 I delivered a judgment1 (the relief judgment) in which I determined the issue of relief following an earlier judgment (the liability judgment)2 finding the defendant (the Council) liable to the plaintiffs in nuisance. In the relief judgment I directed the Council to take such steps as may be necessary within its own land to reinstate support to the plaintiffs’ land.

[2]    The parties have not been able to reach agreement regarding the issue of costs in relation to the hearing that led to the relief judgment. I am therefore required to fix costs having regard to the issues raised in memoranda filed by both counsel.

The plaintiffs’ position

[3]    The plaintiffs seek costs on a Category 2B basis together with an uplift of 33 per cent to reflect their assertion that the Council advanced an argument that lacked merit and failed without reasonable justification to accept an offer of settlement.

[4]    The Council seeks an order that costs should be awarded to it on a Category 2B basis. Alternatively, the Council contends that there should be no order for costs in favour of either party.

Relevant principles

[5]    There is no dispute regarding the principles to be applied. Although costs are at the discretion of the court,3 the guiding principle is that the unsuccessful party should be required to contribute to the costs of the successful party.4

[6]    The Court may award increased costs where a party advances an argument that lacks merit5 or fails without treasonable justification to accept an offer of settlement.6

1      Cattell v Auckland Council [2018] NZHC 3387.

2      Cattell v Auckland Council [2017] NZHC 2140.

3      High Court Rules 2016, r 14.1(1).

4      High Court Rules, r 14.2(1)(a); Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

5      High Court Rules, r 14.6(3)(b)(ii).

6      High Court Rules, r 14.2(3)(b)(v).

Who was the successful party?

[7]    From the outset the plaintiffs have sought an order requiring the Council to reinstate support to their land by undertaking remedial or strengthening works within the reserve owned by the Council. The Council sought to persuade the Court that the damage to the driveway in the plaintiffs’ land could be remedied by replacing the turning area of the plaintiffs’ driveway with a strengthened support structure. This would require the plaintiffs to permit the Council and its contractors to have access to their land to carry out remedial works.

[8]    I did not accept the Council’s argument and made orders as sought by the plaintiffs. For that reason the plaintiffs were clearly the successful party. I did not, however, accept the plaintiffs’ argument in its entirety. This is because I held that the Council was not required to provide support to those parts of the plaintiffs’ land where damage is not yet evident.

[9]    I therefore consider the plaintiffs should receive costs. I do not consider the award should be reduced to reflect the fact that the Council succeeded in its argument regarding the extent to which it should be required to reinstate support. That was a relatively minor issue in the scheme of things.

Should the plaintiffs receive increased costs?

Advancing an argument that lacked merit

[10]   Mr Bigio QC for the plaintiffs submits the Council should pay increased costs because it could not point to any authority supporting its argument. As a result, he contends the argument had no prospect of success.

[11]   I disagree because I do not accept the Council advanced an argument that was unreasonable or lacked merit. As I indicated in both the liability judgment7 and the relief judgment8, the solution suggested by the Council had considerable advantages because it involved one set of remedial works. Under the option favoured by the

7      Cattell v Auckland Council, above n 2, at [119].

8      Cattell v Auckland Council, above n 1, at [5] and [13].

plaintiffs and adopted by the Court it will be necessary for two sets of works to be carried out. The first is the provision of support within the reserve near the boundary of the plaintiffs’ land. The second will be the remedial work necessary to repair the plaintiffs’ driveway. On one view the stance taken by the plaintiffs can be regarded as unreasonable because of the added expense of the two sets of work. On another, the plaintiffs were entitled to insist on their right to have the Council reinstate support to their land.

[12]   The fact that the Council could not point to any authority supporting its argument does not mean the argument lacked merit because it was entitled to ask the Court to adopt a novel approach. I consider it was entirely reasonable for the Council to advance an argument that remedial works on the plaintiffs’ land would be an appropriate solution. I therefore do not consider the plaintiffs are entitled to increased costs because the Council’s argument lacked merit.

Unreasonable failure to accept an offer of settlement

[13]   Prior to the hearing the plaintiffs offered to accept a solution under which the Council would engage an independent engineer to undertake works within the reserve to restore support to the plaintiffs’ land. The Council was not prepared to accept that offer. The plaintiffs contend the Council should be required to pay increased costs to reflect the Council’s unreasonable failure to accept the offer.

[14]   As I have already concluded, however, the Council was entitled to endeavour to persuade the Court to adopt a remedial solution requiring a single set of remedial works on the plaintiffs’ land. For that reason I do not consider the Council acted unreasonably in declining the plaintiffs’ offer.

Result

[15]   The plaintiffs are awarded costs on a Category 2B basis together with disbursements as fixed by the Registrar.

[16]   The Council has not taken issue with the expenditure incurred by the plaintiffs for engaging its expert witness. I therefore approve the disbursement relating to expert witness fees in the sum of $4,887.50 as sought by the plaintiffs.

Lang J

Solicitors:

Pigeon Law, Auckland D R Bigio, Auckland A J Steel, Auckland