Fraser v Central Hawke's Bay District Council

[2022] NZHC 1732

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-14

[2022] NZHC 1732

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

the Resource Management Act 1991

BETWEEN

JILLIAN MARGARET FRASER

Applicant

AND

CENTRAL HAWKE’S BAY DISTRICT COUNCIL

First Respondent

AND

JOSHUA PARKER CALDER AND SUSAN JOANNA CALDER

Second Respondents

Hearing:

On the papers

Counsel:

M Williams for the Applicant

No submissions for the First Respondent M B Lawson for the Second Respondents

Judgment:

20 July 2022

JUDGMENT No 2 OF PALMER J

(Costs)

Counsel/Solicitors

M Williams, Barrister, Napier Rice Speir Limited, Auckland Gifford Devine, Hastings

Lawson Robinson Ltd, Napier

FRASER v CENTRAL HAWKE’S BAY DISTRICT COUNCIL [2022] NZHC 1732 [20 July 2022]

[1]                 In the substantive decision in these proceedings, I quashed one certificate of compliance issued by the Central Hawkes Bay District Council and upheld another.1 In relation to costs, I said:

[61] Ms Fraser has succeeded in her first cause of action challenging the first certificate. It is difficult to see why that was resisted. The Calders have succeeded in the second cause of action challenging the second certificate. Because each party has enjoyed some success, and unless some circumstance exists of which I am unaware, costs will lie where they fall. If there is such a circumstance (and only if there is), and if the parties cannot agree on costs, they have leave to file written submissions of no more than 10 pages each on costs within 10 working days of this judgment.

[2]  Ms Fraser requests costs after the deadline because the Registry did not send her barrister the judgment, though it did send it to her solicitor. I understand Ms Fraser herself was not aware of the decision, so I consider the request.

[3]                 Mr Williams, for Ms Fraser, submits she incurred unnecessary costs in pleading the first cause of action, that she had expressly sought to avoid that, and the Calders advanced pleaded and un-pleaded arguments without substance at the hearing. He submits the circumstances warrant  a 50 per cent uplift to  costs, totalling $9,000.   Mr Lawson, for the Calders, acknowledges the difficulties with the cause of action regarding the first certificate but submits there are no new circumstances justifying a departure from the direction that costs should lie where they fall.

[4]                 In the judgment I indicated that costs should lie where they fell unless there were some circumstances of which I was unaware. I was aware of the problems with the cause of action regarding the first certificate, as the judgment makes plain.2 Counsel have not identified any new circumstances which materially affect my initial view. I consider the interests of justice favour costs lying where they fall. I so order.

Palmer J

1      Fraser v Central Hawke’s Bay District Council [2021] NZHC 2981, [2022] NZRMA 90.

2 At [61].