Hokio Trusts v Manawatu-Wanganui Regional Council

[2017] NZHC 2076

IN THE HIGH COURT OF NEW ZEALAND

PALMERSTON NORTH REGISTRY

CIV-2016-454-102

[2017] NZHC 2076

IN THE MATTER

of the Resource Management Act 1991

AND IN THE MATTER

of an appeal under s 299 to the High Court on a question of law

BETWEEN

HOKIO TRUSTS

Appellant

AND

MANAWATU-WANGANUI REGIONAL COUNCIL

First Respondent

MANAWATU-WANGANUI REGIONAL COUNCIL (AS RESOURCE CONSENT APPLICANT)

Second Respondent

On the papers

Counsel:

P D Taueki in Person with A Hunt, McKenzie Friend, for Appellant

N Jessen for First Respondent
S Johnston for Second Respondent

Judgment:

29 August 2017

JUDGMENT OF THOMAS J (COSTS)

Introduction

[1]                   On 22 September 2016, the Environment Court dismissed an appeal from a December 2015 decision of Independent Commissioners for the Manawatu-Wanganui Regional Council (the Council) acting as regulatory authority.1 The Commissioners

1      Hokio Trusts v Manawatu-Wanganui Regional Council [2016] NZEnvC 185.

HOKIO TRUSTS v MANAWATU-WANGANUI REGIONAL COUNCIL [2017] NZHC 2076 [29 August 2017]

had granted resource consents to the Council’s operational division pursuant to the Resource Management Act 1991 (the Act) for restoration activities at Lake Horowhenua (the Lake). The consents involved a fish pass at the Lake outlet to the Hokio Stream, a sediment trap on the Arawhata Stream prior to its discharge to the Lake and weed harvesting and associated activities within the Lake.

[2]                   The Hokio Trusts appealed the Environment Court decision, raising a question of law in respect of the consent for weed harvesting and associated activities. By my decision dated 21 June 2017 I dismissed the appeal.2

[3]                   The first and second respondents now seek orders for costs and disbursements against the Hokio Trusts jointly and severally on a 2B basis. By my decision I directed any response from the Hokio Trusts to such an application would be required within fourteen days of an application for costs. The Hokio Trusts have not responded, despite a request from counsel for the first respondent.

Analysis

[4]                   The principles applying to a determination of costs are set out in the High Court Rules 2016. Costs are at the discretion of the Court.3 The High Court Rules do, however, contain specific rules applying to the determination of costs.4 The fundamental principles are that the party who fails should pay costs to the successful party and, as far as possible, the determination of costs should be predictable and expeditious.5 The implication is the Court should apply the costs regime in the absence of some reason to the contrary.6

[5]                   From the outset, the respondents identified the appropriate categorisation of the appeal for costs purposes was category 2B. There is nothing to indicate that view was opposed. Category 2 proceedings are those of average complexity requiring counsel of skill and experience considered average in the High Court.7 Band B means

2      Hokio Trusts v Manawatu-Wanganui Regional Council [2017] NZHC 1355.

3      High Court Rules 2016, r 14.1.

4      Rules 14.2–14.17.

5      Rule 14.2.
6      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].

7      Rule 14.3.

a normal amount of time is considered reasonable.8 I am satisfied costs on a 2B basis is the appropriate categorisation.

[6]                   Rule 14.7 permits the Court to refuse an order of costs or to reduce costs otherwise payable in certain circumstances. In the absence of any submissions from the Hokio Trusts, I have considered whether any of those circumstances apply. The only ground potentially applicable is r 14.7(e) whereby the Court may refuse an order of costs or reduce costs if the proceeding concerned a matter of public interest and the party opposing costs acted reasonably. However, given the circumstances of the appeal, as examined in detail in my judgment, I am not satisfied this ground applies.

[7]                   There is no reason therefore to depart from the fundamental principle that costs follow the event. I accept the first and second respondent are each entitled to costs given their separation of function and responsibility in the proceeding. The issue is the extent of those costs.

[8]                   Following their joint memorandum on costs, I asked the respondents to consider whether there was a degree of commonality in respect of the matters addressed by them and whether in the circumstances it was appropriate to reduce the individual costs awards to reflect any overlap.

[9]                   By their response dated 28 August 2017, counsel for the first and second respondents accept each could appropriately reduce their allocation for preparation of written submissions from three days each to two days each to reflect the extent of any overlap.

[10]               In saying that, counsel submit they did collaborate in preparation for the case to ensure both written and oral submissions had a different focus and any overlap was kept to the minimum. I also note counsel minimised their claims in relation to other matters such as prehearing steps.

[11]               In the circumstances I am satisfied it is appropriate to reduce their costs allocation as proposed, which results in a reduction of $2,230 each.

8      Rule 14.5.

[12]               For these reasons, costs as sought are awarded to the first and second respondent. The disbursements as sought are also awarded, save for the claimed hearing expenses of refreshments, which I am not satisfied should be payable.

Result

[13]For the reasons given, costs are awarded as follows:

(a)To the first respondent  $12,265.00 Disbursements   $800.50

Total   $13,065.50

(b)To the second respondent  $10,035.00 Disbursements   $122.16

Total   $10,157.16

Thomas J

Solicitors:

Cooper Rapley Lawyers, Palmerston North for First Respondent Fitzherbert Rowe, Palmerston North for Second Respondent