Friends of Houghton Valley Incorporated v Wellington City Council

[2016] NZHC 1122

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-270 [2016] NZHC 1122

IN THE MATTER

of an application for review

IN THE MATTER

of subdivision and land use consents by the First Defendant under the Resource Management Act 1991

BETWEEN

FRIENDS OF HOUGHTON VALLEY INCORPORATED

Plaintiff

AND

WELLINGTON CITY COUNCIL First Defendant

AND

KAIKOURA VIEW LIMITED Second Defendant

Hearing:	On Papers
Counsel:	G D S Taylor for Plaintiff H B Rennie QC and P D Tancock for Second Defendant
Judgment:	26 May 2016

COSTS JUDGMENT (NO 2) OF BROWN J

[1]      My costs  judgment  in  this  matter delivered  on  4 May 2016  included  the following paragraph:

[8]      I do not accept that there is any basis for reducing costs below a schedule 2B calculation on account of :

(a)      the suggested public interest character of the plaintiff;

(b)      the allegation of Mr Denee having made a false statement; (c)       the allegation that the plaintiff was a sham.

FRIENDS OF HOUGHTON VALLEY INC v WELLINGTON CITY COUNCIL [2016] NZHC 1122 [26 May 2016]

[2] In a memorandum filed on 26 May 2016 the plaintiff seeks a recall of my costs judgment for the purpose of providing reasons for para [8]. The memorandum stated:

3Although one may guess at Your Honour’s reasons, one cannot know and simply to appeal would be likely to result in the matter being remitted to Your Honour, anyway.

[3] While I have reservations about a request for “reasons” in respect of factors referred to in a costs judgment, I provide the following elaboration of the three matters referred to in para [8].

[4]      I did not consider that the interests of the plaintiff in this proceeding justified a cost reduction on a public interest basis.  I noted the second defendant’s submission that Houghton Bay has a long established residents’ association which did not take this proceeding or support it in Court and that the group which exists as guardians maintaining the scenic reserve also did not lend its support to the litigation.

[5]      I considered there was merit in the submission that the primary aim of the plaintiff was to protect the views of a core group of founding members who are mainly owners of properties in and around the site.  I agreed with the submission that the case law on public interest entities did not assist a campaigning single-issue society such as the plaintiff.

[6]      However, even if that view was found to be in error, I did not consider, to the extent that the plaintiff might be viewed as having a public interest dimension, that it should be immune from the costs of bringing litigation which had the objective of preventing and had the effect of delaying a residential subdivision development.

[7]      Paragraph 16 of the statement of defence of the second defendant responded to the allegation in para 16 of the statement of claim concerning a letter written by the  plaintiff’s  solicitor.    Paragraph 16  of  the  statement  of  defence  included  the following sentence:

It further says that the statement by the solicitor that the Plaintiff intended to advance the matter rapidly was false in that the period from 23 January to

9 April 2015 elapsed without these proceedings being filed …

[8]      The  proposition  that  the  plaintiff’s  solicitor  had  made  a  false  statement played no part in the resolution of the issues before me.  I viewed it as irrelevant to the issue of costs which is why I did not accept there was any basis for a costs reduction on account of that statement in the pleading.

[9]      Similarly the allegation that the plaintiff was a sham was contained in the statement of defence of the second defendant:

27.2The Plaintiff has been created as a sham to use the provisions of the Incorporated Societies Act 1908 to defeat the powers of this Court against parties to this proceeding and is barred accordingly from seeking a remedy in equity.

[10]     As with the second matter above, this allegation was not material to the issues which I was required to determine.  I could see no basis on which it warranted any reduction from the costs which would otherwise be awarded to a successful

party.

Brown J