Evans v Clutha District Council

[2019] NZHC 549

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-409-000598

[2019] NZHC 549

BETWEEN

MAXINE MAY EVANS

Plaintiff

AND

CLUTHA DISTRICT COUNCIL

Defendant

Hearing:

On the papers

Counsel:

G A Paine for the Plaintiff

D R Tobin for the Respondent

Judgment:

25 March 2019

JUDGMENT OF NATION J AS TO COSTS

[1]        The defendant Council was successful in the High Court in judicial review proceedings brought by the plaintiff.1

[2]        The Council seeks an order for costs on a 2B basis. With disbursements, the order sought is for costs of $11,929. The plaintiff opposes the making of an award. Through counsel, she accepts that on a 2B basis with the exception of $446 sought for sealing a costs order, that has not happened.

[3]        The plaintiff submits firstly that these proceedings were over “a public good issue” and, in those circumstances, the Court should exercise its discretion to let costs lie where they fall.

1      Evans v Clutha District Council [2018] NZHC 3355.

EVANS v CLUTHA DISTRICT COUNCIL [2019] NZHC 549 [25 March 2019]

[4]        Secondly, the plaintiff refers to the fact she has lodged an appeal. She says no agreement has been reached that the costs be held in a separate interest-bearing account and only be paid following the outcome of the appeal. Although, through counsel, she acknowledges the appeal does not act as a stay, she suggests that the question of costs should not thus be determined pending the outcome of the appeal.

[5]        The plaintiff suggests it may be appropriate to fix costs now but on the basis that they would not have to be paid until the result of the appeal is known.

[6]        The plaintiff accepts an appeal does not operate to stay the judgment that has been obtained in the High Court. Although all matters as to costs are at the discretion of the Court, principles to be applied include:2

14.2(1)(a) the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds;

…

14.2(1)(g) so far as possible the determination of costs should be predictable and expeditious.

[7]        Despite those principles, r 14.7(e) says a Court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if:

the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding.

[8]        The plaintiff was representing the interests of a small group of named people who had demonstrated their support for her particular view through providing affidavits in support of her application. The issue as to whether the two trees should be cut down was a matter of importance to them. There was nothing in the information put before the Court to indicate the issue was of the same importance to broad sections of the Balclutha community. Rule 14.7(e) will therefore not apply.3

2      High Court Rules 2016.

3      Consistent with Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9].

[9]        The challenge in Court was against a decision of the Council, the elected representatives of the whole community. The costs the Council incurred in successfully opposing the proceedings were costs incurred by the whole community of ratepayers. In these circumstances, I consider it remains appropriate to give effect to the principle that the successful party is entitled to costs.4

[10]      As stated in McGechan, one purpose of r 14.2(g) is that costs should be calculated and agreed promptly, “so that the party entitled to them is out of pocket for its recoverable litigation costs for the minimum time”.5

[11]      That purpose would be frustrated if the costs to which the Council are entitled do not have to be paid pending the hearing of the appeal. Consistent with that approach is r 14.8 which states:

14.8Costs on interlocutory applications

(1)   Costs on an opposed interlocutory application, unless there are special reasons to the contrary,—

(a)must be fixed in accordance with these rules when the application is determined; and

(b)become payable when they are fixed.

[12]      Disbursements include fees of Court for the proceeding.6 It is appropriate that the Court, in its award of costs, allows recovery of a disbursement which will be incurred on the making of a costs order even though the fee for sealing a costs order will not be paid until after the costs order has been made.7 This will avoid the need for a successful party to make a separate application for costs in respect of a disbursement which is reasonably incurred for the purpose of the proceeding after the disbursement has in fact been paid. It will also avoid the unsuccessful party having to pay further costs in respect of a separate application.

4      Consistent with Te Rangatiratanga O Ngati Rangitihi Inc v Bay of Plenty Regional Council HC Tauranga CIV-2010-470-936, 17 February 2011 at [10].

5      McGechan on Procedure (online ed, Thomson Reuters) at [HR14.2.01(7)(c)].

6      High Court Rules 2016, r 14.12(1)(b)(i).

7      Consistent with HA v Refugee and Protection Office [2018] NZHC 1011.

[13]      For all these reasons, there will be an order that the plaintiff pay to the defendant costs, including disbursements, in the sum of $11,929. Those costs are payable now.

[14]      If the plaintiff is successful on her appeal to the Court of Appeal and the judgment of the High Court is quashed, it can be expected this costs order will also be quashed. The costs that have been paid to the defendant by the plaintiff will then have to be refunded to the plaintiff. There is no reason for the Court to think this will not happen.

Solicitors:

G A Paine, Barrister, Dunedin D R Tobin, Barrister, Dunedin.