Dokad Trustees Limited v Auckland Council

[2021] NZHC 2930

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-866

[2021] NZHC 2930

IN THE MATTER OF

The Judicial Review Procedure Act 2016

AND IN THE MATTER OF

The Resource Management Act 1991

BETWEEN

DOKAD TRUSTEES LIMITED

First Applicant

PETER WILLIAM MAWHINNEY
Second Applicant

AND

AUCKLAND COUNCIL

First Respondent

ENVIRONMENT COURT

Second Respondent

On the papers

Counsel:

Second Applicant in person

R J O’Connor for the First Respondent

Judgment:

1 November 2021

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 1 November 2021 at 12:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DOKAD TRUSTEES LIMITED v AUCKLAND COUNCIL [2021] NZHC 2930 [1 November 2021]

[1]    In my judgment dated 30 September 2021, I refused Mr Mawhinney’s application under s 169 of the Senior Courts Act 2016 for leave to commence or continue (i) this judicial review proceeding brought by him and Dokad Trustees Ltd (Dokad) and (ii) Dokad’s application in the Environment Court for enforcement orders.

[2]    I also awarded costs to Auckland Council against both Mr Mawhinney and Dokad. The parties have been unable to agree costs. They have filed memoranda.

[3]The Council claims costs on a 2B basis plus disbursements. Its total claim is

$4,166.63. The Council seeks a costs order from both Mr Mawhinney and Dokad on a joint and several basis.

[4]    Mr Mawhinney opposes any award of costs. His first submission is that the Council acted unlawfully and this caused him to bring the proceedings. That is an argument about the underlying merits. I have already determined the merits in my judgment. This submission is irrelevant to costs.

[5]    Mr Mawhinney’s second submission is that the Council was represented by an employed lawyer and therefore is not entitled to recover costs. I reject the submission. The Supreme Court held in McGuire that a party who employs a lawyer is entitled to recover costs.1

[6]    Finally, Mr Mawhinney complains about the Council’s charge out rate for in- house lawyers. I reject Mr Mawhinney’s complaint. The Council referred to its in- house rate ($179.48 per hour) merely to show that at that rate the Council’s actual costs were $9,153.48, more than double what it claimed at 2B. What is in issue is the claim at 2B. The hourly rate and time allowance at 2B are both appropriate and reasonable.

[7]    Dokad opposes any award of costs. First, it puts the underlying merits in issue. That is irrelevant to costs. Secondly, it submits it was not a party to Mr Mawhinney’s leave application and so cannot be liable for costs. That submission overlooks that the

1      McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55] and [88].

Court has jurisdiction to award costs against non-parties.2 It is appropriate to exercise that jurisdiction here, given Dokad’s direct interest in the leave application.

[8]    Neither Mr Mawhinney nor Dokad took any issue with particular cost or disbursement items claimed by the Council. I find all items are appropriate.

[9]    Accordingly, I order that Mr Mawhinney and Dokad are liable to pay costs and disbursements of $4,166.63 to the Council, on a joint and several basis.

Campbell J

2      Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39, [2005] 1 NZLR 145.