Hill Country Corporation Ltd v Hastings District Council HC Napier CIV-2010-441-222

[2011] NZHC 116

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-222

IN THE MATTER OF     THE RESOURCE MANAGEMENT ACT

1991

AND IN THE MATTER OF AN APPEAL FROM A DECISION OF THE HIGH COURT PURSUANT TO SECTION 299 OF THE ACT

BETWEEN  HILL COUNTRY CORPORATION LTD Appellant

ANDHASTINGS DISTRICT COUNCIL Respondent

Hearing:         On the papers

Counsel:         MEJ Macfarlane and L J Blomfield for Appellant

J M von Dadelszen for Respondent

Judgment:      10 February 2011 10:30:00

I direct the Registrar to endorse this judgment with a delivery time of 10.30am on the 10th day of February 2011.

JUDGMENT OF MACKENZIE J AS TO COSTS

[1]      On 17 September 2010, Hugh Williams J delivered judgment dismissing an appeal by the appellant against a decision of the Environment Court dismissing the appellant’s appeal to that Court against a decision by the respondent to charge the appellant additional costs of $287,000 for processing a private plan change request. The Judge reserved costs on the basis that the parties could file memoranda if they were unable to agree.  Because of the Judge’s then impending retirement, he noted

that any outstanding issues of costs could be resolved by any Judge.

HILL COUNTRY CORPORATION LTD V HASTINGS DISTRICT COUNCIL HC NAP CIV-2010-441-222 10

February 2011

[2]      Memoranda have been filed.  The starting point must be to consider the costs which would be awarded in accordance with r 14.2(c) of the High Court Rules.  At the initial case management conference the proceeding was classified as category 2. As this is an appeal, the time allocations are those provided for in items 14, 15 and

16 of schedule 3.

[3]      As to item 14, I consider, in light of the respective memoranda as to costs, that  an  allowance  at  band  B  for  this  step  is  appropriate.    I do  not  accept  the submission of counsel for the respondent that this should be fixed at band C.

[4]      The allowance for preparation for the appeal is covered by item 15.  Counsel for the respondent has referred to item 7.4, and counsel for the appellant to item 8. As I have said, I consider that the correct item is item 15.  That would allow time for preparation equal to the hearing time.  I consider that increased costs for this step are justified under r 14.6(3)(a).  Counsel for the appellant effectively acknowledges that by referring to item 8, under which the preparation time is twice the time occupied by the  hearing.    I do  not  consider  that  the  increase  sought  by counsel  for  the respondent, to an allowance of four days or eight times the allowance in the scale, is justified.   I am not satisfied that the circumstances justify this.   I consider that an allowance of twice the hearing time, namely one day, is appropriate.

[5]      For the hearing itself, item 16, the allowance is one half day.   I do not consider that increased costs are required.

[6]      Accordingly I award costs as follows:

Item	Step in proceeding	Days
14	Preparation for case management conference	0.2
15	Preparation for hearing	1.0
16	Appearance at hearing	0.5
Total	1.7

[7]      That should be paid at the rate applicable to category 2 proceedings, namely

$1,880 per day, a total of $3,196. That is the amount I award.

[8]      The respondent also claims disbursements of $552 for photocopying and additional  bundle.    Counsel’s  memoranda  note  that  Williams J  did  not  wish  to receive this at the hearing.  I do not consider that the appellant should be ordered to meet the cost of that photocopying.

“A D MacKenzie J”

Solicitors:         Sainsbury Logan & Williams, Solicitors, Napier for Appellant

Bannister & von Dadelszen, Solicitors, Hastings for Respondent