Green v Auckland Council - [2013] NZHC 3422

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003468 [2013] NZHC 3422

UNDER the Judicature Amendment Acts 1972 and
1977 or in the alternative Part 7 of the
High Court Rules

IN THE MATTER of the Resource Management Act 1991

BETWEEN JONATHAN GREEN and MEGAN BILES
Plaintiffs

ANDAUCKLAND COUNCIL First Defendant

ANDROBERT JAMES ANDREW TAYLOR and DORETTA PALMOLLINGO Second Defendants

Hearing: On the papers

Counsel: A Webb for the Plaintiffs
W S Loutit for the First Defendant
G Milner-White for the Second Defendant

Judgment: 17 December 2013

COSTS JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Tuesday 17 December 2013 at 10.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:
A Webb, Barrister, Auckland
W S Loutit, Simpson Grierson, Auckland
G Milner-White, Kensington Swan, Auckland

GREEN & BILES v AUCKLAND COUNCIL [2013] NZHC 3422 [17 December 2013]

Background

[1] The parties have unfortunately been unable to agree on costs.

[2] For reasons I do not understand, detailed costs memoranda filed by counsel languished on the desk of a case officer for approximately six weeks. Counsel filed full submissions in the second half of October but these were not brought to my attention until last week.

[3] The plaintiffs sought judicial review in respect of non-notification of an application to vary a consent notice under the Resource Management Act 1991. My reserved judgment, dated 11 September 2013,1 found in favour of the plaintiffs. Failure to notify was, in my judgment, both an error of law and unreasonable. On the issue of the judicial review discretion, by a small margin, I found in favour of the plaintiffs.

[4] On the issue of costs I said this:

[155] Counsel are agreed that costs should be reserved. It is my hope that costs can be agreed.

[156] Clearly the plaintiffs are entitled to costs and their reasonable disbursements.

[157] I am disinclined to order costs against the second defendants. I also assume that there is a practice in terms of which the first defendant can avoid liability for the second defendants’ full costs, but may be exposed to a contribution.

[5] I shall refer to the successful parties as “the plaintiffs”, the territorial authority (the first defendant) as “the Council”, and the parties against whom I exercised the judicial review discretion (whose predicament flowed from the Council’s failure to notify) as “the second defendants”.

[6] The plaintiffs seek indemnity costs from the Council, with increased costs in the alternative. They seek contribution from the second defendants. The Council accepts liability for 2B scale costs, but disputes liability for increased or indemnity
costs.

1 Green v Auckland Council [2013] NZHC 2364, 11 September 2013.

[7] The second defendants oppose a contribution to the plaintiffs’ costs and seek

2B scale costs from the Council on the basis that they were an innocent party in terms of the Council’s decisions that were successfully reviewed.

[8] So, so far as the costs award against the Council is…

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.

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Details

Case: [2013] NZHC 3422
Decision Date: 17 December 2013

CaseChat Overview and Summary

The High Court of New Zealand, Auckland registry, dealt with the case of Green and Biles versus Auckland Council, where the plaintiffs sought judicial review concerning the non-notification of an application to vary a consent notice under the Resource Management Act 1991. The court found in favour of the plaintiffs, and the issue at hand was the costs incurred during the proceedings. The plaintiffs sought indemnity costs from the Auckland Council, with increased costs as an alternative, and contribution from the second defendants. The Auckland Council accepted liability for 2B scale costs but disputed liability for increased or indemnity costs. The second defendants opposed a contribution to the plaintiffs' costs and sought 2B scale costs from the Auckland Council, arguing they were innocent parties.

The court examined the plaintiffs' arguments for indemnity costs, which included the Council's failure to meet and discuss an out-of-court solution, the aggressive conduct of the Council, and the lack of merit in almost all of the points raised by the Council. The court concluded that the Council's conduct did not meet the threshold for an award of indemnity costs as it was not flagrant. The plaintiffs also sought increased costs, but the court found that the threshold for such an award was not met, as the Council was in a difficult position and the plaintiffs were successful overall on the discretionary aspect.

The court ordered that the Auckland Council would pay 2B scale costs and disbursements, totalling $40,526.77, to the successful plaintiffs. The second defendants were not liable for any contribution to that amount. The court did not make a formal contribution award to the second defendants payable by the Auckland Council, leaving the matter to be resolved by another judge if the parties could not agree.

Orders