Heavey v Hastings District Council

[2020] NZHC 3021

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2020-441-69

[2020] NZHC 3021

UNDER

the Judicial Review Procedure Act 2016, the Judicature Amendment Act 1972 and Parts 5 and 30 of the High Court Rules 2016

IN THE MATTER OF

the Resource Management Act 1991

BETWEEN

PAT HEAVEY and PAUL STEVENSON

Applicants

AND

HASTINGS DISTRICT COUNCIL

First Respondent

LANDSDALE DEVELOPMENTS LIMITED

Second Respondent

On the papers
Judgment:	16 November 2020

JUDGMENT OF MALLON J

[1]    The plaintiffs commenced a judicial review proceeding concerning a decision by the first defendant (the Council) to grant an earthworks consent to the second defendant. The proceeding was discontinued. The Council seeks costs.

[2]The sequence of events was as follows:

(a)The proceeding was served on the defendants on 11 September 2020. This meant the date for filing statements of defence was 16 October 2020.

HEAVEY v HASTINGS DISTRICT COUNCIL [2020] NZHC 3021 [16 November 2020]

(b)By email dated 14 September 2020 the plaintiffs sought a meeting with the Council to discuss the claim.

(c)By email dated 18 September 2020 the Council advised it would respond “shortly”.

(d)By email dated 28 September 2020 counsel for the plaintiffs advised that they had instructions to urgently file a notice of discontinuance and sought the defendants’ position as to costs.

(e)On 29 September 2020 the notice of discontinuance was filed.

[3]Rule 15.23 of the High Court Rules 2016 provides that:

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.

[4]Pursuant to r 14.1 cost matters are at the discretion of the Court.

[5]    The Council claims costs of $4,780 being the amount allowed for “commencement of defence by defendant” on a 2B basis.1 The Council acknowledges it had not filed a defence at the time the notice of discontinuance was filed. It says it should be awarded costs because it had completed drafting a defence and it had also made significant progress on initial disclosure.

[6]    The second defendant advises that it was well advanced in preparing its defence and had incurred costs in so doing. It does not seek costs “in the interests of preserving neighbourly relationships”.

[7]    Had the Council filed its defence, it would be entitled to the amount it claims. Because it did not do so, the question is whether as a matter of discretion it should have a portion of what would be the appropriate allocation for its defence because its preparation was well advanced. I consider it is not appropriate to make such an order.

1      High Court Rules 2016, Schedule 3.

This is because the plaintiffs signalled almost from the outset that it wished to discuss the claim, and it signalled (and then filed) the discontinuance well in advance of the date for filing a statement of defence. In those circumstances only a small portion of the allocation that would have been awarded if a defence had been filed would be appropriate at best. And, given that the amount would be small, I consider the more appropriate position is the one taken by the second defendant.

[8]The Council’s application for costs is accordingly declined.

Mallon J