Character Coalition Incorporated v Auckland Council

[2025] NZHC 1143

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002182 [2025] NZHC 1143

UNDER

the Resource Management Act 1991

IN THE MATTER OF

an appeal under Section 299 of the Resource Management Act 1991

BETWEEN

CHARACTER COALITION INCORPORATED

Appellant

AND

AUCKLAND COUNCIL

First Respondent

CLAIR CONNOR

Second Respondent

Hearing:

11 March 2025

Appearances:

B S Carruthers KC and E M Burns for Appellant M C Allan for First Respondent

A M Cameron for Second Respondent

Judgment:

13 May 2025

JUDGMENT OF MUIR J

Costs

This judgment was delivered by me on 13 May 2025 at 3 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Counsel/Solicitors:

Shortland Chambers, Auckland Brookfields Lawyers, Auckland

CHARACTER COALITION INCORPORATED v AUCKLAND COUNCIL [2025] NZHC 1143 [13 May 2025]

Introduction

[1]                   In my substantive judgment dated 7 April 2025, I dismissed the appeal brought by Character Coalition Incorporated (CCI) against a decision of the Environment Court.1 In the event the parties were unable to reach agreement as to costs, counsel were invited to file memoranda. They are now in hand. The parties are agreed on all but two issues. These are:

(a)the appropriate band for the preparation of written submissions (being band B or band C); and

(b)a claimed disbursement for hyperlinking of the second respondent’s submissions (totalling some $359.38).

[2]This judgment determines those issue.

Allowance on preparation of written submissions

[3]                   The second respondent says that the appropriate band for the preparation of written submissions is band C because the time spent in preparation was necessarily greater than that ordinarily spent in respect of an appeal on a point of law under pt 20 of the High Court Rules 2016.

[4]                   Ms Connor says that this reflected the “sprawling” nature of the appeal which identified 13 alleged errors of law, some of which lacked particulars or merit. She notes that the alleged errors were quickly consolidated to three during the course of oral argument but says she was nevertheless put to cost in addressing the diffuse attack mounted in the notice of appeal and in CCI’s initial submission. Counsel notes that increased security for costs was initially sought on account of the number of pleaded errors and that the matter was only resolved on a standard basis with assurances from CCI that a more targeted case would follow. Ms Connor says this was not the case.

[5]                   The appellant submits  that  costs  should  be  awarded  on  a  band  B  basis. It rejects any suggestion of a “sprawling” argument. It emphasises that the appeal had

1      Character Coalition Incorporated v Auckland Council [2025] NZHC 805.

a public interest component and that neither CCI nor its members stood to benefit from the litigation personally.

[6]                   In this case, although the notice of appeal did indeed identify 13 discrete challenges, CCI’s written submissions significantly consolidated its grounds of appeal resulting in a document of appropriate length (27 pages — with much of that being reasonably uncontentious background information about the relevant legislative framework, what the Environment Court decided and how this Court should approach an appeal on questions of law). In these written submission were the seeds of distillation to the three critical issues identified in my judgment.

[7]                   Ms Connor’s response, which was of equivalent length, largely foreshadowed that consolidation. It did not proceed on a point by point refutation of the 13 specific points referenced in the notice of appeal. Like all good submissions, it went to the core of what was in dispute and addressed it efficiently.

[8]                   That was, in turn, reflected in adequate disposition of the appeal within the one day allocated.

[9]                   I do not, in  that  context,  consider  band  C  to  be  appropriate.  Although Ms Connor may consider that penalises her for having sufficiently efficient counsel to separate wheat from chaff and does not recognise the time sometimes taken to do so, the expectation of counsel appearing in this Court is that they have this skill set and that a “comparatively large amount of time” will not be necessary to do so.

[10]               In that context it is not necessary for me to address the “public interest” issue. CCI is not seeking a reduction of costs under r 14.7(e) of the High Court Rules, simply that the costs award in respect of item 56 be limited to a band B allowance.

[11]               Accordingly, costs under item 56 for preparation of written submission on appeal are to be determined on a 2B basis.

Disbursement

[12]               The second respondent also claims as a disbursement the use of a contractor to provide hyperlinking services for the written submissions at a cost of $359.38. Counsel submits that neither they, nor their solicitors, had the necessary software or expertise to “bulk edit” hyperlinks so as to avoid painful, time-consuming and costly manual editing. For that reason (and for reasons of cost), both are said to routinely outsource hyperlinking to external support services.

[13]               The appellant maintains that the claimed disbursement is an expense which would not ordinarily be charged for separately from legal services under r 14.12(1) of the High Court Rules. Counsel cites Zheng v Deng, in which the Court of Appeal held that the cost of preparing an electronic case on appeal may be recoverable as a disbursement in circumstances where it is reasonable for the lawyer to contract this work out to a provider of such support services.2 However, the Court also recognised that in many cases the relevant work can be done “in house” without incurring external costs, and that in such cases it should be captured within the standard allowance for the lawyer’s time.3

[14]               I accept CCI’s submission that although Ms Connor’s solicitors may have regarded reliable hyperlinking as time consuming, that is, within a contemporary context, part of the function intended to be compensated for with a standard award of costs.

Result

[15]               I award costs in favour of the second respondent in the sum of $12,667 in accordance with the schedule annexed to this judgment.

Muir J

2      Zheng v Deng [2021] NZCA 190 at [26].

3 At [26].

ANNEXTURE

Step	Description	Time allocation x daily recovery rate	Amount
53	Response to appeal	0.5 x 2390	$1,195
54	Case management (as for ordinary proceeding)
10	Preparation for first CMC	0.4 x 2390	$956
11	Filing joint memo—1 October 2024, 7 November 2024 and 4 March 2025	0.4 x 2390	$956
56	Preparation of written submissions	3 x 2390	$7,170
57	Appearance of sole counsel	1 x 2390	$2,390
Total hours			5.3
Total			$12,667