Hojsgaard v Chief Executive of Land Information New Zealand
[2018] NZHC 1563
•27 June 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-488-000012
[2018] NZHC 1563
BETWEEN PETER HOJSGAARD
Plaintiff
AND
THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND
First Defendant
ROBIN PATRICK BRILL
Second Defendant
Hearing: 27 June 2018 Appearances:
P H Thorp for the Plaintiff
A Ho for the Second Defendant
Judgment:
27 June 2018
JUDGMENT OF JAGOSE J
[Stay]
This judgment is delivered by me on 27 June 2018 at 3.30pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors/Counsel:
P H Thorp, Barrister, Auckland (Plaintiff) Glaister Ennor, Auckland (Plaintiff)
Crown Law, Wellington (First Defendant) Gilbert Walker, Auckland (Second Defendant) D R Bates QC, Auckland
HOJSGAARD v CHIEF EXECUTIVE, LINZ [2018] NZHC 1563 [27 June 2018]
[1] Mr Hojsgaard’s substantive claim sought this Court’s quashing, and replacement, of the Chief Executive’s approval of Mr Brill’s survey of a boundary abutting Mr Hojsgaard’s property. Mr Hojsgaard contended the survey failed to take account of Mr Hojsgaard’s boundary allegedly being a right-lined water boundary.
[2] My judgment of 20 April 2018 directed the Chief Executive to reconsider and determine whether Mr Brill’s survey complied with the Rules for Cadastral Survey 2010, by reference to whether Mr Hojsgaard’s affected boundary was depicted in its survey by a right-lined water boundary.1
[3] I reserved costs for determination on memoranda, but indicated my preliminary view Mr Hojsgaard should be liable to Mr Brill for 3B costs and disbursements, and the Chief Executive liable to Mr Hojsgaard for one-third 2B costs and disbursements.2
[4]Mr Hojsgaard has appealed my decision to the Court of Appeal, contending:
(a)I should have reconsidered and determined the (non-)compliance of Mr Brill’s survey myself, to quash it;
(b)I should have made a declaration on the merits of the underlying survey dispute; and
(c)given the expert survey evidence before me at trial (which Mr Hojsgaard’s counsel, Mr Thorp, described on the present application as “conclusive”), I should not have required the Chief Executive’s reconsideration of the point.
I understand the appeal is likely to be heard in August or September this year.
[5] On the present application, Mr Thorp seeks I stay both the Chief Executive’s reconsideration and the determination of costs. The Chief Executive abides my decision on Mr Hojsgaard’s stay application, much as he did on Mr Hosjgaard’s substantive application for declaratory relief (although not Mr Hojsgaard’s judicial review application). So does Mr Brill, except in relation to the determination of costs.
1 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750 at [110].
2 At [113]-[114].
Staying of proceedings and execution
[6]Rule 12 of the Court of Appeal (Civil) Rules 2005 provides:
12 Stay of proceedings and execution
(1)None of the matters referred to in subclause (2) operate as—
(a) a stay of a proceeding in which a decision was given; or
(b) a stay of execution of that decision.
(2)The matters are—
(a) an application for leave to appeal; or
(b) the giving of that leave; or
(c) an appeal.
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on application,—
(a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b) grant any interim relief.
(4)An order or a grant under subclause (3) may—
(a) relate to execution of the whole or part of the decision or to a particular form of execution:
(b) be subject to any conditions that the court appealed from or the Court thinks fit, including conditions relating to security for costs.
(5)If the court appealed from refuses to make an order under subclause (3), the Court may, on application, make an order under that subclause.
(6)If the court appealed from makes an order under subclause (3), the Court may, on application, vary or rescind that order.
(7)The Court may, at any time, vary or rescind an order made by it under this rule.
[7] Ordinarily, I am to balance the competing rights of the party who obtained the judgment under appeal against the need to preserve the appellant’s position for the appeal.3 Factors to be taken into account in the balancing exercise relevantly include
3 Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.
“[w]hether the appeal may be rendered nugatory by the lack of a stay”, “[w]hether the successful party will be injuriously affected by the stay”, and “[t]he novelty and importance of questions involved”.4 ‘Nugatory’ is a high threshold: it anticipates compliance with the judgment under appeal “could not then be undone”.5 The ultimate object is to ensure “the appeal Court may be able to do justice between the parties, whatever the outcome of the appeal”.6
—stay of execution of direction to Chief Executive
[8] However, in the present case, Mr Hojsgaard is both the (partially) successful party at trial, and the appellant. It is not clear to me what ‘injurious effect’ is done to his appeal if the Chief Executive was to comply with my direction, which the Chief Executive had not done at the time Mr Hojsgaard brought his appeal, and shows no sign of doing since. (The Chief Executive neither seeks any stay of my direction, nor actively supports Mr Hojsgaard’s application.) I am a little troubled by that lethargy, because it is for the Chief Executive to determine surveys’ compliance with the Rules.7
[9] If the Chief Executive was to determine the survey was non-compliant, the Surveyor-General is bound to obtain its correction,8 effectively delivering Mr Hojsgaard the remedy he seeks. Alternatively, if the Chief Executive was to determine the survey was compliant, Mr Hojsgaard’s appeal is unaffected. Mr Thorp argues the Chief Executive’s reconsideration of the survey’s compliance meant additional evidence would require to be considered for the first time on appeal. I do not see that: the essence of the appeal is I was entitled to supplant, and on the evidence should have supplanted, the Chief Executive’s statutory role in determining surveys’ compliance with the Rules. What the Chief Executive may subsequently think of that compliance seems irrelevant.
4 Keung v GBR Investment Ltd [2010] NZCA 396 at [11], endorsing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].
5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd (2009) 24 NZTC 23,750 (CA) at [24].
6 Minnesota Mining and Manufacturing Co v Johnson & Johnson [1976] RPC 671 (EWCA) at 676, cited in New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA) at [13].
7 Hojsgaard (above n 1) at [107].
8 At [15].
[10] However, if the Chief Executive was to determine the survey was non- compliant – and the survey corrected accordingly, delivering the remedy Mr Hojsgaard seeks – Mr Hojsgaard’s appeal would likely be rendered moot, and risked being struck out unless there was sufficient public interest in resolving its questions out of their particular context.9 Whether this Court was entitled to supplant the Chief Executive’s decision would remain undetermined. Although I held comprehensively against it,10 I accept the question is at least novel in terms of the then-new statutory regime established by the Cadastral Survey Act 2002.11 On that narrow basis, and influenced by the Chief Executive’s inaction, I will stay execution of my direction to the Chief Executive.
—stay of proceepding in which direction given
[11] Mr Hojsgaard also seeks stay of my determination of costs. Because I have not yet made any determination of costs, that is effectively “a stay of the proceeding in which the decision [under appeal] was given”,12 or, as Mr Thorp acknowledged in argument, my continued reservation of costs.
[12] Mr Brill, whose participation in the proceeding (which commenced as a negligence claim against him) is funded by his insurers to some degree, says nothing in determination of costs will affect the appeal. Costs on judicial review applications are not to await the result of the decision-maker’s reconsideration, so as to be allocated in terms of the reconsideration. Mr Brill (or, more likely, his insurers) should not be required to continue to carry the burden of substantial legal expenses incurred over two years to conclude with an 8-day split trial, finally ending in December 2017.
[13] Mr Thorp points out Mr Hojsgaard is also a likely beneficiary of costs, and their allocation (or possibly, proportion) will be dependent on the result of the appeal.
[14] I do not see any post-appeal adjustment of costs as may be in prospect to justify staying the proceeding. There was no suggestion any of the parties could not presently afford to pay them, or were at risk of not being able to reimburse them, if adjustment
9 Signer v R [2011] NZSC 109 at [3]; R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [15]-[16].
10 Hojsgaard (above n 1) at [74].
11 At [62]-[64].
12 Court of Appeal (Civil) Rules 2005 at r 12(3)(a).
was subsequently required. Mr Ho said for Mr Brill, judgment has been given in the High Court, and ‘costs should follow the event’. I agree. I will not stay the proceeding, and will renew my (now expired) directions for the filing of costs memoranda.
Order
[15]I order a stay of the execution of [110] of my substantive decision.
Directions
[16] I direct short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – be filed and served on all parties by:
(a)any party claiming costs within ten working days of the date of this judgment;
(b)any party opposing costs within five working days of service of the claimant’s memorandum; and
(c)the relevant claimant strictly in reply within five working days of service of the opponent’s memorandum.
—Jagose J
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