Gordon v Waitaki District Council - [2015] NZHC 1472

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-41 [2015] NZHC 1472

BETWEEN
ROBERT WILLIAM GORDON AND

LYNETTE MABEL GORDON Applicants

AND

WAITAKI DISTRICT COUNCIL First Respondent

RODGER JOHN SMAILL AND DONNA ELIZABETH SMAILL

Hearing:
29 June 2015

(On the papers)

Appearances:

P Page for Applicants
F Barton and A Cunninghame for First Respondent
C P Thomsen for Second Respondents

Judgment:

29 June 2015

JUDGMENT OF MANDER J

[1] This is an application for costs arising out of a discontinued application for judicial review of the decision of the Waitaki District Council (the Council) to grant a variation on a non-notified basis of a resource consent. The relevant part of the resource consent in dispute related to permitted helicopter activity on Mr and Mrs Smaill’s (the Smaills) property which neighboured Mr and Mrs Gordon’s (the Gordons) property at Omarama.

[2] The proceeding was settled prior to the first case management conference as a result of the Smaills surrendering the part of the resource consent under challenge.
The only remaining issue between the parties is that of costs.

GORDON v WAITAKI DISTRICT COUNCIL & ANOR [2015] NZHC 1472 [29 June 2015]

Applicable principles

[3] While rule 15.23 of the High Court Rules provides that a plaintiff who discontinues a proceeding against a defendant must pay costs, that presumption is reversed if in the circumstances it is just and equitable to do so.1 Not uncommonly, there will be situations where the discontinuing party has succeeded. Rule 14.2(a) provides as a general principle that the party who fails should pay costs to the party who succeeds. That is subject to the overarching consideration that all matters as they relate to costs are at the discretion of the Court.2

The Gordons’ application

[4] The Gordons seek costs on a 2B basis in the sum of $7,827.33. They also seek disbursements of $11,705.80, the bulk of which comprises the expenses of experts who provided affidavit evidence filed with the Gordons’ statement of claim. The claim for the expenses incurred by the Gordons in engaging expert witnesses at an early stage is central to the parties’ cost dispute.

The Council’s position

[5] The Council acknowledges the Gordons are entitled to an award of costs, however, it submits the costs sought are excessive. It considers a reasonable award of costs on a 2B basis would amount to $6,510, payable by the Council, together with reimbursement of the $540 filing fee.

The Smaills’ position

[6] Similarly, the Smaills accept the Gordons should be awarded costs for commencing the proceedings and for its filing fee. From their perspective, they are concerned, however, as to the accuracy of the Gordons’ submission regarding the reasons why they chose to surrender the variation to the consent, the apportionment
of costs and the disbursements sought.

1 Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973.
2 High Court Rules, r 14.1

Analysis

[7] Ryde v The Earthquake Commission provides helpful guidance of the factors to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gordon v Waitaki District Council

Details

AGLC: Gordon v Waitaki District Council [2015] NZHC 1472
Case: [2015] NZHC 1472
Decision Date: 29 June 2015

CaseChat Overview and Summary

Gordon v Waitaki District Council [2015] NZHC 1472 involves an application for costs arising from a discontinued application for judicial review. The applicants, Robert and Lynette Gordon, sought to challenge a decision by the Waitaki District Council to grant a variation of a resource consent related to helicopter activity on a neighbouring property. The proceeding was settled prior to the first case management conference when the Smaills surrendered the part of the resource consent under challenge. The only remaining issue was that of costs.

The primary legal issue the Court had to decide was the quantum of the costs sought by the Gordons and whether the costs were reasonable. The Gordons sought costs on a 2B basis in the sum of $7,827.33 and disbursements of $11,705.80, primarily for the expenses of expert witnesses. The Council and the Smaills both acknowledged the Gordons were entitled to some costs, but argued the amounts sought were excessive.

The Court considered the applicable principles, including the presumption under rule 15.23 of the High Court Rules that a plaintiff who discontinues a proceeding against a defendant must pay costs, which can be reversed if it is just and equitable to do so. The Court assessed whether it was reasonable for the Gordons to bring the proceedings, whether the respondents reasonably defended, why the proceedings were discontinued, and whether the merits of the case should influence the costs outcome.

The Court found that while it was reasonable for the Gordons to bring the proceedings, the surrender of the resource consent variation by the Smaills was motivated by pragmatic reasons, not an acceptance of the merits of the Gordons' challenge. The Court also concluded that it was not well-placed to determine the merits of the case.

Regarding the expenses of expert witnesses, the Court found that while the Gordons were entitled to recover some expenses, the costs of engaging a planning consultant as an expert were not a necessary part of the preparation of the proceeding and should not be borne by the respondents. The Court awarded costs and disbursements in the sum of $9,491.19 against the Council, while no order was made in respect of the Smaills.

Orders