Coro Mainstreet (Inc) v Thames-Coromandel District Council

[2013] NZHC 1527

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2012-419-001113 [2013] NZHC 1527

UNDER  Part 1 of the Judicature Amendment Act

1992

IN THE MATTER             of the Resource Management Act 1991

BETWEEN  CORO MAINSTREET (INCORPORATED) Plaintiff

ANDTHE THAMES-COROMANDEL DISTRICT COUNCIL

First Defendant

THE NATIONAL TRADING COMPANY OF NEW ZEALAND LIMITED

Second Defendant

Hearing:                   (on the papers) Appearances:      J C Brabant for the Plaintiff

AMB Green and S E Curran for the First Defendant
D R Clay and S de Groot for the Second Defendant

Judgment:                24 June 2013

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 24 June 2013 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel:

J C Brabant, Auckland
AMB Green and S E Curran, Auckland

D R Clay and S de Groot, Auckland

CORO MAINSTREET (INC) v THE THAMES-COROMANDEL DISTRICT COUNCIL [2013] NZHC 1527 [24 June 2013]

[1]      I refer to my substantive judgment in this matter dated 21 May 2013.

[2]      I gave judgment in favour of the defendants, and against the plaintiff.   I recorded   that   the   defendants   were   entitled   to   their   reasonable   costs   and disbursements, and I put in place a timetable for the filing of memoranda in that regard.

[3]      I  have  received  a  memorandum  from  Mr  Green,  on  behalf  of  the  first defendant Council.  He seeks costs on a 2B basis, in the sum of $24,079.  He also seeks disbursements of $108.80.

[4]      Mr Clay, on behalf of the second defendant, The National Trading Company of New Zealand Limited, also seeks costs on a 2B basis.   Total costs sought are

$19,104.   Disbursements of $108.80 are also claimed.   No costs were sought on behalf of second counsel.

[5]      Mr   Brabant,   in   a   memorandum   filed   on   behalf   of   the   plaintiff

Coro Mainstreet (Incorporated), accepts that it is appropriate to award costs on a

2B basis   and   that   both   defendants   have   properly   calculated   the   costs   and disbursements claimed by them in their respective memoranda.  He submits that the plaintiff is an incorporated society of limited means, that the proceedings concerned a matter of public interest, that the plaintiff ’s conduct was reasonable in that it engaged  in  the  proceedings  in  a  focussed  manner,  and  that  its  costs  should  be reduced to an award of $2,500 in favour of each defendant, which would equate to the security given by the plaintiff to the Court on 13 February 2013.

[6]      I accept that costs can properly be reduced in public interest litigation.[1]

[1] Titahi Bay Residents Association Inc v Porirua City Council HC Wellington CIV 2007-485-

1933, 18 October 2007 at [8].

[7]      In the present case, the proceedings were brought in the public interest, at least insofar as the plaintiffs saw it.  They were not brought for personal gain, and the plaintiff’s conduct of the proceedings was reasonable.  The matters raised at the hearing before me were focussed, and they were responsibly and well presented by

counsel on behalf of the plaintiff.

[8]      Nevertheless,  the  defendants  had  previously  liaised  extensively  with  the plaintiff, and every reasonable attempt had been made by the second defendant to meet the plaintiff’s legitimate concerns. The first defendant Council for its part dealt with the application in a considered and responsible way.  It listened to the concerns expressed by the plaintiff and others, and it engaged appropriate experts to peer review reports submitted by the second defendant.

[9]      In my judgment, there was, at the end of the day, a blindness by the plaintiff to the expert views, particularly those obtained by the Council.  There was a degree of obstinacy in the plaintiff’s position, albeit that it raised matters of public interest in Coromandel, and of some importance to that local community.   Incorporated societies are not immune from costs orders and they go into litigation aware of the relevant High Court Rules relating to costs.

[10]     In the exercise of the discretion conferred on me by r 14.1, I consider it appropriate to reduce the costs claimed by each of the defendants by 10 percent, to recognise the public interest nature of the proceedings, and the responsible manner in which  they  were  run.    I  am  not  prepared  to  allow  a  greater  discount.    The consequence of reducing costs to the first defendant is that the burden falls on its ratepayers.   The burden to the second defendant falls on its shareholders, and ultimately its customers.

[11]     Accordingly, I award costs of $21,671.10 in favour of the first defendant, together with disbursements of $108.80, a total sum of $21,851.10.  I award costs in favour   of   the   second   defendant   in   the   sum   of   $17,193.60,   together   with disbursements of $108.80 — a total sum of $17,373.60.

[12]     The Registrar is directed to apportion the amount held as security for costs by the Court pro rata between the defendants by reference to the amount awarded to

each, and pay to each of the defendants the appropriate share of those monies.

Wylie J