Grey District Council v Banks

[2015] NZHC 2518

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2012-418-000005 [2015] NZHC 2518

BETWEEN

GREY DISTRICT COUNCIL

Applicant

AND

DOUGLAS BANKS First Respondent

CHRISTINE SANDRA BANKS Second Respondent

Hearing:	Dealt with on the papers
Judgment:	13 October 2015

JUDGMENT OF GENDALL J

[1]      There  are  two  opposed  applications  before  the  Court  brought  by  the respondents, Mr and Mrs Banks, seeking leave to appeal to the Court of Appeal decisions of this Court dated 5 June 2015 and 29 June 2015.

[2]      Matters  have  developed  in  the  last  month  or  two  with  respect  to  these matters.

[3]      The Court  of Appeal  recently heard  appeals  on  other matters lodged  by Mr and Mrs Banks on about 23 July 2015.  On 8 September 2015 it seems the Court of Appeal released its decision with respect to these appeals.  This was a decision, as I understand it, regarding the release of a Council 10 August 2009 report entitled “Blaketown Leases – A Way Forward.”  In this decision the Court of Appeal refused these appeals of Mr and Mrs Banks.

[4]      Mr  and  Mrs  Banks  have  now  filed  a  memorandum  in  this  Court  dated

17 September 2015 indicating they are presently preparing an appeal to the Supreme

Court against this decision of the Court of Appeal.

GREY DISTRICT COUNCIL v BANKS [2015] NZHC 2518 [13 October 2015]

[5]      In the meantime, Mr and Mrs Banks confirm in that memorandum that they seek to discontinue the two applications before this Court seeking leave to appeal to the Court of Appeal this Court’s earlier decisions.

[6]      On this aspect, leave is now granted to Mr and Mrs Banks to discontinue these two leave applications.

[7]      Counsel for the respondent has also filed a memorandum indicating that it seeks costs on a category 2B scale basis of $3122 and disbursements of $220 with respect to these discontinued applications.

[8]      This costs application is made on reliance on r 14.8 of the High Court Rules and r 15.23 of the High Court Rules.  Rule 15.23 states:

15.23   Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[9]      This presumption in r 15.23 however is able to be displaced if the Court considers it is just and equitable to do so.

[10]     Here, nothing has been placed before the Court by Mr and Mrs Banks to indicate that there should not be an award of costs made with respect to the discontinuance of their leave applications.   It is clear the applicant Grey District Council has been put to some costs with respect to these abandoned proceedings.

[11]     Accordingly, I see no reason in this case why costs should not follow the event in the normal way, bearing in mind, too, the provisions of r 15.23 noted above.

[12]     An order is now made therefore that the applicant Grey District Council is entitled to an award of costs calculated on a category 2B basis (amounting to $3122) together with disbursements (amounting to $220) with respect to these discontinued applications.

[13]     Notwithstanding this, however, and effectively unopposed, I find that it is appropriate an order for stay of execution is made with respect to the present costs orders, and also any other costs orders made in favour of Grey District Council against Mr and Mrs Banks, until final disposal of their application for leave to appeal the Court of Appeal decision by the Supreme Court noted above.  An order to this effect is now made.

...................................................

Gendall J

Solicitors:

Simpson Grierson, Wellington

Copy to Respondents