Ellis v Far North District Council

[2014] NZHC 1985

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-000102 [2014] NZHC 1985

BETWEEN

DIANA MAREE ELLIS

Appellant

AND

FAR NORTH DISTRICT COUNCIL First Respondent

THE ATTORNEY-GENERAL Second Respondent

THE MINISTER OF EDUCATION Third Respondent

Hearing:

On the papers

Counsel:

Appearance:

JF Verry for the first respondent
No appearances for the second respondent
DA Allan and DJ Sadlier for the third respondent

DM Ellis, appellant in person

Judgment:

22 August 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 22 August 2014 at 2pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Far North District Council, Kaikohe

Ellis Gould, Auckland

To:  DM Ellis, Northland

ELLIS v FAR NORTH DISTRICT COUNCIL & ORS [2014] NZHC 1985 [21 August 2014]

my minute of 12 August 2014.

[2]      The third respondent seeks costs.  Counsel for the first respondent indicates that if costs are awarded in favour of the third respondent, no application will be made by the first respondent.  I proceed on that basis.

[3]      Counsel  for  the  third  respondent  has  filed  a  memorandum.     In  that memorandum counsel identifies the steps by reference to schedule 3 of the High Court Rules in respect of which he says allowance should be made.  His calculation

is based on Category 2, Band B.  His schedule is as follows:

Step	Description of step	Time allocated	Cost at daily rate of $1,990.00
10	Preparation for first case management conference	0.4	$796.00
11	Filing memorandum for first case management conference	0.4	$796.00
13	Appearance at first case management conference	0.3	$597.00
23	Filing opposition to interlocutory application	0.6	$1,194.00
Total	1.7	$3,383.00

[4]      Counsel limits the claim for costs to the $2,000 currently held by the Court as security for costs.

[5]      I directed that a copy of counsel for the third respondent’s memorandum be provided to the appellant.  I gave the appellant the opportunity of filing submissions in response.   The appellant has done that.   She advises that the reason she has withdrawn her appeal was because of ill health.  She records her great shame and regret that she is not able to pursue the appeal and says she was motivated by her care to protect the environment.

[6]      This case was classified as a Category 2 case by me at a case management conference  with  the  parties.     That  is  the  appropriate  cost  category  for  this proceeding.  The next matter that I must consider is the appropriate band.  The only

of the appeal is whether Band B should apply to step 53. As it happens, the matter is of little consequence because it simply reduces the amount claimed by a maximum of 0.2 of a day.   That would still leave the justifiable costs according to scale in excess of $2,000.

[7]      I consider that where a party has abandoned an appeal, the approach to costs should follow by analogy the position which arises where a plaintiff discontinues a proceeding.

[8]      The Court of Appeal in Kroma Colour Prints Ltd v Tridonicatco NZ Ltd gave the following helpful guidance on the subject, where it said:1

The Judge correctly stated the law on r 476C. She referred to North Shore City Council v Local Government Commission (1995) 9 PRNZ 182, noting that the presumption in favour of awarding costs to  a defendant against whom a proceeding had been discontinued may be displaced if there were just and equitable circumstances not to apply it. A court would not speculate on respective strengths and weaknesses of the parties’ cases. The reasonableness of the stance of both parties, however, had to be considered. She also referred to Oggi Advertising Limited v McKenzie (1998) 12 PRNZ

535 which recognised that the discretion reposing in r 46 could override the general principles relating to discontinuance.

[9]      It is not possible to speculate on the strength or weakness of the appellant’s position or for that matter the respondents’.  Nor do I think it is appropriate to do so for the reasons just referred to.

[10]     The third respondent’s claim is slightly less than two thirds of the amount that would be justified on a 2B basis.  I appreciate the appellant’s position in relation to her health.  The position, however, is that the third respondent has been put to the cost of defending the appeal and the interlocutory application.  I do not consider that there  are  any  reasons  which  would  justify  my  refusing  costs  in  this  case. Accordingly, I order that the appellant pay costs of $2,000 in respect of the appeal and  the  interlocutory  application  and  that  that  sum  should  be  satisfied  by  the

Registrar  paying  the  security  for  costs  held  in  Court  to  the  third  respondent’s

1      Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150 at [12], (2008) 18 PRNZ

973.

JA Faire J