Gregory v Thames Coromandel District Council

[2018] NZHC 699

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2016-419-240

[2018] NZHC 699

BETWEEN

COLT GREGORY (AUTHORISED

EXECUTOR) OF URI O TAMATEPO
First Plaintiff

PETER JAMES MARTIN (REGISTRAR) OF WHAKAMINENGA KI HAURAKI
Second Plaintiff

AND

THAMES COROMANDEL DISTRICT COUNCIL

First Defendant

GLENN LEACH
Second Defendant

JOHN HOOK
Third Defendant

MINISTER FOR LAND INFORMATION
Fourth Defendant

SCHMITT GROUP

Fifth Defendants

Hearing:

On the papers

Counsel:

First Plaintiff in person Second Plaintiff in person

J Vella and C Timbs for First and Second Defendants

M Pirini and R Polaschek for Third and Fourth Defendants D Quinn for Fifth Defendants

Judgment:

18 April 2018

COSTS JUDGMENT OF WHATA J

GREGORY v THAMES COROMANDEL DISTRICT COUNCIL [2018] NZHC 699 [18 April 2018]

This judgment was delivered by me on 18 April 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Crown Law, Wellington

[1]                 I issued two judgments in relation to this matter. They concerned claims by tangata whenua to land. In the first judgment, I granted the first defendant’s interlocutory application for summary judgment in respect of the plaintiffs’ claim for recovery of Section 20 Block XIII Whitianga Survey District as shown in Certificate of Title SA20A/322 (Section 20 land).1 It was subject to indefeasible title. There was no prospect of success.

[2]                 In the second judgment, I granted summary judgment in relation to any claim to reclaimed land based on full customary title, but declined to grant summary judgment based on lesser interests in the reclaimed land. I found that tangata whenua claims to lesser interests in reclaimed land were not precluded by statute per se. I did, however, strike out Mr Leach as a defendant, on the basis that any interest Mr Leach had in the land in dispute and any decisions made by him as Mayor, were not made in his personal capacity.2

[3]                 There are remaining issues as to costs. I foreshadowed in my second judgment that:

[66] … the pleading dealing with the reclaimed land raised an issue of considerable public interest and costs in respect of that claim should lie where they fall. Furthermore, as the plaintiffs were not represented by counsel, any costs claim by them (if any) should be limited to disbursements.

[4]It transpires:

(a)The second plaintiff seeks costs as the successful party.

(b)The third and fourth defendants abide the decision of the Court but note that, in line with the statement made by me in the second judgment, as the plaintiffs were self-represented, they may only seek disbursements which they can prove they incurred.

1      The pleadings refer to Section 20 Block XII. This costs judgment reflects the Certificate of Title which specifies Section 20 Block XIII.

2      The claim against the third defendant, Mr Hook, was also struck out.

(c)Thames Coromandel District Council (TCDC) and Mr Leach seek 2B costs for most steps in relation to their successful summary judgment claim for recovery of the Section  20  land  and  the  claim  against  Mr Leach in his personal capacity, and 2C costs in relation to the filing of their interlocutory application and preparation of submissions. They also seek an increase in scale costs by 50 per cent.

[5]                 I can deal with the second plaintiff’s claim summarily. The plaintiffs were not represented by legal counsel and may not claim legal costs.3 But, as I will explain below, their success is relevant to the final costs award.

[6]                 TCDC and Mr Leach, as successful parties in relation to the Section 20 land and the personal claim against Mr Leach, are presumptively entitled to costs. I also agree with the thrust of their basic submission that the claims in relation to the Section 20 land and Mr Leach had no prospect of success from the outset. Groundless claims of fraud are further aggravating factors. TCDC was put to considerable expert expense to show the absence of fraud. It also appears the first defendant should have known better, having failed to make out similar claims in Te Roroa Whatu Ora Custodian Ltd v Kereopa.4

[7]                 Balanced against this, the plaintiffs were successful in avoiding summary judgment in terms of lesser tangata whenua interests in the reclaimed land. As noted, this was an issue of considerable public interest. Further, taking a broader view of success in the litigation, and bearing in mind tikanga Maori as to relates to land; the affirmation of a potential claim right to taonga tuku iho (including the reclaimed lands occupied, in this case, by TCDC) is a matter of some considerable moment to the plaintiffs. It was, by far, the more complex and demanding aspect of the proceedings; and the evidence dealing with the history of the lands was relevant to this aspect of the claim. In my view, looking at justness in the round, the plaintiffs’ partial, yet important, success in relation to the reclaimed lands offsets the costs that might otherwise be expected in relation to the balance of the claims.

3      Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2010] NZCA 400 at [162].

4      Te Roroa Whatu Ora Custodian Ltd v Kereopa [2012] NZHC 1052.

[8]                 Finally, had the plaintiffs had legal representation, they could have mounted a case for legal costs in relation to those parts of the proceeding where they were successful. That would have had the effect of offsetting, at least in part, a costs award in favour of the defendants relating to their Section 20 land success.

[9]                 Taking all matters together, costs and disbursements should lie where they fall, save in one respect. Mr Leach should never have been named as a party. In personalising the claim in this way, the plaintiffs clearly stepped outside legitimate bounds. I put the costs and expenses associated with this part of the proceedings at 15 per cent. There shall be a joint order of costs on a 2B basis and disbursements accordingly in favour of TCDC and Mr Leach against the plaintiffs jointly and severally. Quantum is to be fixed by the registrar if it cannot be agreed.