Chen v Auckland Council

[2023] NZHC 404

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1248

[2023] NZHC 404

IN THE MATTER

of an application for review under the Judicial Review Procedure Act 2016

BETWEEN

ZHONGGUI CHEN

Plaintiff

AND

AUCKLAND COUNCIL

First respondent

QPC COMMERCIAL LIMITED
Second respondent

ALEXANDER JOEL COBURN

Third respondent

Hearing:

On the papers

Counsel:

S J Ryan and S A Kilgour for plaintiff

S F Quinn and K H Rogers for first respondent M R Taylor for second and third respondents

Date of judgment:

6 March 2023

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 6 March 2023 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

S J Ryan, Barrister, Auckland M R Taylor, Barrister, Auckland DLA Piper, Wellington

Pidgeon Judd, Auckland

CHEN v AUCKLAND COUNCIL - Costs [2023] NZHC 404 [6 March 2023]

[1]    The plaintiff (Ms Chen) seeks 2B scale costs of $56,289.64 and disbursements jointly and severally against the respondents. Subject to the Court’s discretion, in general principle, “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”.1

[2]    Ms Chen’s amended claim contended for error in the first respondent Council’s requirement for her provision of a stormwater connection for the second and third respondent’s (QPC) drains under s 460 of the Local Government Act 1974, rather than under s 181 of the Local Government Act 2002, such drains also being approved without contended required notification under the Resource Management Act 1991 and in terms of contended ultra vires or unreasonable engineering plan approvals. A critical aspect appeared to be if the subject drain was ‘public’ or ‘private’, Ms Chen having sought its recategorisation as the latter. Interim orders also were sought, but rendered unnecessary by the respondents’ undertakings.

[3]    The Council ultimately took the latter statutory path, leading to the parties’ settlement on terms (but not extending to costs). Ms Chen claims such settlement constitutes her success, entitling her to costs. That characterisation is resisted by the Council, which otherwise contends for a refusal of or reduction in costs. QPC argues for costs to lie where they fell by analogy with costs on discontinuance.2

[4]    Costs on discontinuance are not apposite here. The right to discontinue arises only before the proceeding’s determination.3 But in this proceeding, the parties jointly sought the Court’s order quashing the Council’s decision(s) under the 1974 Act, as Moore J made by consent.4

[5]    Given the parties’ settlement, I am unable to discern on Ms Chen’s application for costs who appropriately may be described as ‘failing’ or ‘succeeding’ with respect to the proceeding. I cannot infer either from the parties’ consensual accommodation, which is more consistent with achievement of an alternative result than any inevitable litigation consequence. As an application for judicial review, Ms Chen bore the burden

1      High Court Rules 2016, r 14.1–14.2

2      Rule 15.23.

3      Rule 15.19(1).

4      Minutes of 2 and 5 September 2022.

of establishing the Council’s impugned decisions were unlawful, or unfair or unreasonable in a judicial review sense, none of which is the inevitable corollary of the parties’ settlement. That Ms Chen’s objective was achieved by agreement does not translate effectively to the parties’ failure or success in the proceeding.

[6]Costs (and disbursements) are to be borne by the party incurring them.

—Jagose J