Hunter v Auckland Council - [2020] NZHC 2533

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000097

[2020] NZHC 2533

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of a decision under the Resource Management Act 1991, granting of resource consent

BETWEEN

KEITH MERVYN GEORGE HUNTER

Applicant

AND

AUCKLAND COUNCIL

First Respondent

PHILIP BURLEY

Second Respondent

ACL TRUSTEES LIMITED

Third Respondent

Hearing: On the papers

Counsel:

Applicant in person

A Cumming for the First Respondent
S Stienstra for the Second and Third Respondents

Judgment:

28 September 2020

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Monday, 28 September 2020 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

HUNTER v AUCKLAND COUNCIL [2020] NZHC 2533 [28 September 2020]

[1] On 16 July 2020, I dismissed Mr Hunter’s application for judicial review of a decision made by a panel of Independent Hearing Commissioners granting resource consent to the redevelopment of his neighbour’s house.1 Costs were unable to be agreed. I have now received memoranda from the applicant, Mr Hunter, the first respondent, Auckland Council, and the second and third respondents, Mr Burley and ACL Trustees Ltd, being the neighbour and his company which owns the neighbouring property.

Auckland Council

[2]Auckland Council claims a total of $26,002 as follows:

Costs on a 2B basis (per day)

$2,390.00

2

Commencement of defence by defendant (2 days)

$4,780.00

10

Preparation for first case management conference (0.4 days)

$956.00

11

Filing memorandum for first case management conference (0.4 days)

$956.00

13

Appearance at first case management conference (0.3 days)

$717.00

30

Preparation of affidavits, authorities and agreeing common bundle (2 days)

$4,780.00

32

Preparation for hearing (2 days)

$4,780.00

34

Appearance at hearing for sole or principal counsel (0.5 days)

$1,195.00

Total costs (7.6 days)

$18,164.00

[3]In addition, Auckland Council seeks the following disbursements:

(a)Filing fee — statement of defence $110.00

(b)Expert witness fees and expenses (Karyn Kurzeja) $7,728.00

[4]The total costs and disbursements sought therefore amounts to $26,002.00.

[5] Mr Hunter queries two items listed in the table — the preparation of affidavits, authorities and agreeing common bundle (Item 30) and preparation for the hearing

1 Hunter v Auckland Council [2020] NZHC 1720.

(Item 32). He submits that the claim should be reduced to one day each, rather than two. That is because the time allocations for these two items provide for two half days for the first hearing day. The hearing for this matter was only half a day. Mr Hunter therefore submits that the time for preparation should be halved.

[6] In addition, Mr Hunter does not agree that Auckland Council should be entitled to claim the fees and expenses for Ms Kurzeja as an expert. Ms Kurzeja was the Chair of the panel of Independent Hearing Commissioners. She gave factual evidence, not expert evidence. Her affidavit does not refer to the code of conduct for expert witnesses. Mr Hunter submits…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2533
Decision Date: 28 September 2020

CaseChat Overview and Summary

The case of Hunter v Auckland Council involved a judicial review application by Keith Mervyn George Hunter challenging a decision by a panel of Independent Hearing Commissioners to grant resource consent for the redevelopment of his neighbour’s house. The respondents were Auckland Council, Philip Burley, and ACL Trustees Limited, the neighbour and his company. The court was required to decide the legal issues concerning the costs claimed by the respondents. Specifically, the court had to determine whether the costs claimed by Auckland Council for the fees of the expert witness, Karyn Kurzeja, were appropriate and whether the costs claimed by Mr Burley and ACL Trustees Ltd for their solicitor and counsel were correctly assessed.

The court found that the time for preparation of affidavits, authorities, and agreeing the common bundle, as well as preparation for the hearing, should not be halved as Mr Hunter had suggested. The court relied on Ms Kurzeja's invoice to justify the two-day allocation for preparation. However, the court agreed with Mr Hunter that Auckland Council should not be entitled to claim Kurzeja's fees as an expert witness since she was the Chair of the panel of Independent Hearing Commissioners and provided factual evidence rather than expert evidence. The court also ruled that Mr Burley and ACL Trustees Ltd should not be able to claim full indemnity costs for their solicitor and counsel as this would be a duplication of their scale costs. The court found that the claims for certain disbursements, such as the planner’s costs and local government information request, were not reasonably necessary for the conduct of the application for judicial review.

The court ordered that costs were payable by Mr Hunter to Auckland Council totalling $18,274.00 and to Mr Burley and ACL Trustees Ltd totalling $20,889.00. The final orders of the court specified the amounts to be paid by Mr Hunter to each of the respondents.

Orders