Friends of Onekawa Aquatic Centre Society Incorporated v Napier City Council

[2019] NZHC 2162

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-26

[2019] NZHC 2162

BETWEEN

THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED
Applicant

AND

NAPIER CITY COUNCIL

Respondent

Counsel:

M J E Williams for Applicant

D J S Laing and O L Rego for Respondent

Judgment: On thepapers

30 August 2019

JUDGMENT OF GRICE J

(Costs)

[1]    On 30 July 2019 I made interim orders restraining the Council from taking certain steps until the hearing of the substantive application. That hearing is scheduled for 30 September.1

[2]    The applicant has applied for costs on the basis it was successful in obtaining the interim orders.

[3]    The respondent opposes costs saying that it ultimately consented to the form of the interim order and had attempted to settle an interim position with the applicant before the commencement of the two-day hearing.

1      The Friends of Onekawa Aquatic Centre Society Incorporated v Napier City Council [2019] NZHC 1977 [30 July 2019].

THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITY COUNCIL [2019] NZHC 2162 [30 August 2019]

[4]    The respondent Council says that the applicant instead had sought an order restraining the Council from taking any further action with respect to the construction of the Napier Aquatic Centre prior to determination of the substantive hearing. The Council had to oppose this order as it needed to continue with the tender process up to the date of the substantive hearing as well as carrying on with the resource consenting process and preloading the site.

[5]    The usual position is that costs on an interlocutory application must be fixed when the application is determined and they become payable then unless there are special reasons to the contrary.2 Costs usually follow the event.3

[6]    The Council says the form of the interim order allows it to carry out those steps on the terms of the interim order agreed upon. To support that it attaches “without prejudice correspondence”. The applicant opposes the production of that correspondence on the basis it was not marked without prejudice “except as to costs”.

[7]    In the event it is not necessary for me to consider whether that correspondence should be considered. It would be difficult without the full context of the discussions between counsel and relying only on letters annexed to counsel’s memoranda to ascertain the exact negotiation positions of each of the parties in any event. Nevertheless, it is clear that the Council had indicated a willingness to negotiate. That was apparent at the hearing. Ultimately the position reached was in terms which allowed the Council to do various works it needed to do and the times were not as wide as the original application had sought. Nevertheless, the applicant was successful to an extent. However, whether it would have obtained the interim orders it sought had the terms not been agreed and the Court was required to determine the application, is not certain.

[8]    While the applicant was in part successful the outcome was in essence a negotiated settlement. Taking into account the circumstances of this case I consider a reasonable discount should be applied to any order for costs in favour of the applicant, to recognise this and the background.

2      High Court Rules 2016, r 14.8.

3      High Court Rules 2016, r 14.2.

[9]    I note that no issue has been taken with the quantification of the costs claim which was attached as a schedule to the application for costs.4 Accordingly, I award costs in those terms to the applicant with a discount to those costs of 30 per cent.

Grice J

Solicitors:

Langley Twigg, Napier for Applicant Simpson Grierson, Wellington for Respondent

4      This appears to be calculated on a 2B basis.