Currie v Palmerston North City Council

[2022] NZHC 3591

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-022

[2022] NZHC 3591

BETWEEN

ISOBEL ESTER CURRIE AND BEVAN PHILIP CURRIE

Appellants

AND

PALMERSTON NORTH CITY COUNCIL

First Respondent

TOLLY FARM LIMITED

Second Respondent

Hearing:

On the Papers

Counsel:

J Maassen for Appellants

N Jessen for First Respondent
A J Davidson for Second Respondent

Judgment:

21 December 2022

JUDGMENT OF McQUEEN J [COSTS]

[1]        The appellants unsuccessfully appealed against an Environment Court decision that a valid resource consent application had been made by Tolly Farm Ltd (Tolly Farm).1 In my decision dated 8 November 2022, I found that the Environment Court did not err in finding that it was permissible to consider the whole of the application for the resource consent (including supporting documentation) to ascertain the applicant for the resource consent was Tolly Farm. I also found that, in any case, an error in naming the applicant for the resource consent would not invalidate the resource consent application or the subsequent resource consent.

1      Currie v Palmerston North City Council and Tolly Farm Ltd (t/a Soul Friends Pet Cremations)

[2022] NZHC 2909 [Substantive decision].

CURRIE AND CURRIE v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 3591 [21 December 2022]

[2]        The parties have been unable to reach agreement on costs. Both respondents seek increased costs. The first respondent, Palmerston North City Council (the Council), seeks costs on a 2B basis with a 50 per cent uplift. The second respondent, Tolly Farm, seeks costs on a 2B basis with an increase in scale costs for three steps in the proceedings2 or, in the alternative, a 50 per cent uplift. The appellants accept that scale costs are payable but dispute the uplift sought by the respondents and say the (lesser) scale costs claimed by the Council should also be the amount paid to Tolly Farm.

Costs sought

[3]        The respondents seek increased costs on the basis that the appellants contributed unnecessarily to the time and expense of the proceeding, pursuant to      r 14.6(3)(b) of the High Court Rules 2016.

[4]        Both the Council and Tolly Farm submit that the appellants contributed unnecessarily to the time and expense of the proceedings by pursuing a case that lacked merit, as indicated by the conclusions of this Court in the substantive judgment. Both respondents note that the appellants chose to pursue a technical argument about a minor procedural error despite suffering no prejudice as a result. They say they were required to participate fully given the challenges to the legitimacy of the Council’s resource consent application process and the potential impact of the appeal on the viability of Tolly Farm’s business. It is submitted that, given the lack of merit and the lack of prejudice faced by the appellants, their actions came close to amounting to acting frivolously or unnecessarily in commencing and pursuing the appeal and justify an increased costs award nearing an indemnity level.

[5]Tolly Farm refers to two particular matters, namely:

(a)the appellants’ counsel did not consent to an agreed timetable proposed by Tolly Farm prior to the case management conference. Rather, they proposed an extended timetable, despite proffering no basis for this.

2      Seeking Band C allowances for preparation for the case management conference and preparation of case on appeal/common bundle, and an extra day allowance for the preparation of written submissions.

This required both respondents to take the additional step of filing a joint memorandum addressing timetabling matters before the case management conference. The Court made the timetabling directions sought by Tolly Farm at the case management conference on 23 May 2023.

(b)the appellants filed three versions of the common bundle. The first version contained 51 documents and over 1,400 pages. Despite Tolly Farm advising that it regarded only five documents as relevant and requesting its objection to the bundle be recorded, the bundle was filed without the objection noted. Two amended versions were then filed on 28 June and 24 July, both after Tolly Farm has filed its submissions with references to the original bundle. This required the further preparation of submissions so as to direct the Court to the new bundle references.

[6]        The appellants submit that there is no adequate justification advanced by either respondent for an uplift. They submit that it was an appeal on a discrete issue with modest (in length) memoranda and submissions and a half day hearing, thus constituting a standard appeal on a question of law and in no way justifying a departure from standard costs.

[7]        The appellants also dispute the specific uplifts sought by Tolly Farms in relation to the timetable and the common bundle. They say that disagreeing over a timetable does not justify an uplift. In relation to the common bundle, the appellants say they initially proposed using the bundle from the Environment Court proceeding but that on the request of Tolly Farm they removed documents from the bundle in order to create a new bundle for the appeal. They further say that updating Tolly Farm’s submissions would have been a simple task not justifying an uplift.

Discussion

[8]        In Bathurst Resources Ltd v L&M Coal Holdings Ltd, the Court of Appeal has recently summarised the circumstances in which an increased costs award is appropriate for the pursuit of an argument that lacks merit:3

[16]  Generally, increased costs may be ordered where there is a failure by the paying party to act reasonably. It is not enough that an appeal (and therefore cause of action at first instance) lacks merit. Increased costs will generally not be appropriate where there are “at least available starting points” for the argument — where its pursuit is not “unreasonable” nor “hopeless”. The costs regime should be predictable and litigants with “real arguments presented responsibly” to the courts should not fear an adverse increased costs award if their case fails. The standard costs regime recompenses in the case of normal failure.

[9]        While I found that the legislative framework clearly supported the taking into account of supporting documentation when ascertaining the applicant for the resource consent, I consider that this appeal point (arising from the first question of law) required entertainment by the Court and accordingly there was somewhat of an available starting point, as described in Bathurst. In reaching this conclusion, however, I note that the first question of law as addressed by the Court had to be reframed and the first question of law as initially advanced by the appellant mischaracterised the Environment Court decision and dealt with irrelevant matters as accepted on appeal.4

[10]      However, I consider no such starting point existed in relation to the second question of law raised. As noted in the substantive judgment, the Courts’ approach to technical defects in the resource management context, and the favouring of substance over form in this context, is well established.5 Against this backdrop, any error sought to be identified by the appellant through the first question of law advanced would not lead to the invalidity of the resource consent. I also note that counsel are expected to take greater than usual care in deciding whether or not to raise a technical or unmeritorious argument.6

3      Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZCA 684 (footnotes omitted).

4      Substantive decision, above n 1, at [22]–[30]

5      At [56]–[61].

6      DFC New Zealand Ltd v Bielby [1991] 1 NZLR 587 (HC) at 595.

[11]In all the circumstances, I consider a modest uplift of 25 per cent is appropriate.

[12]I prefer to take this approach in relation to the costs of both respondents.

[13]      I note that I do not accept Tolly Farm’s claim for costs relating to preparation of the case on appeal. I note that at paragraph [15] of its submissions, Tolly Farm state that this allowance was sought “for preparation of the common bundle”. However, despite concerns as to the preparation process (as raised by Tolly Farm and canvassed above) it was the appellants who prepared the common bundle.

[14]      I also reject the appellants’ contention that both respondents should receive the quantum of costs as claimed by the second respondent. It is common practice that costs and disbursements sought by different respondents in proceedings may differ, depending on the steps taken by each respondent in relation to the proceedings. The costs sought by both the Council and Tolly Farm (excluding the allocation sought by Tolly Farm for preparation of the case on appeal) are reasonable and relate to steps taken by each in the proceedings.

Result

[15]      Costs are awarded on a 2B basis with a 25 per cent uplift. This results in a costs award of $14,041.25 to the Council and $15,236.25 to Tolly Farm. Annexed to this judgment are tables setting out the calculation of these figures.

McQueen J

Solicitors:

Willis Legal, Napier, for appellants

Cooper Rapley Lawyers, Palmerston North, for first respondent Jacobs Florentine, Palmerston North, for second respondent

Annexure 1

Costs—Palmerston North City Council

Stage of proceeding	Allocated days	Cost
Commencement of response to appeal	0.5	1195
Preparation for first case management conference	0.4	956
Appearance at first case management conference	0.3	717
Preparation of written submissions	3	7170
Appearance at hearing for sole or principal counsel	0.5	1195
Total 2B scale costs	4.7	11233
Uplift (25%)	2808.25
Total cost award	14041.25

Costs—Tolly Farm Ltd

Step	Allocated days	Cost
Commencement of response to appeal	0.5	1195
Preparation for first case management conference	0.4	956
Filing memorandum for case management conference	0.4	956
Appearance at first case management conference	0.3	717
Preparation of written submissions	3	7170
Appearance at hearing for sole counsel	0.5	1195
Total 2B scale costs	5.1	12189
Uplift (25%)	3047.25
Total cost award	15236.25