Hunter v Auckland Council - [2018] NZHC 2975

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-766

[2018] NZHC 2975

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of decisions made pursuant to sections 95B and 104 and 104D of the Resource Management Act 1991

BETWEEN

KEITH MERVYN GEORGE HUNTER

Plaintiff/Applicant

AND

AUCKLAND COUNCIL

First Defendant/First Respondent

PHILIP MARTIN BURLEY
Second Defendant/Second Respondent

ACL TRUSTEES LIMITED

Third Defendant/Third Respondent

Hearing: On the papers

Counsel:
Appearance:

SM Derber for the first defendant/respondent

S Stienstra for second and third defendants/respondents

KMG Hunter, plaintiff/applicant in person

Judgment:

16 November 2018

JUDGMENT OF FITZGERALD J

[As to award of disbursements to lay litigant]

This judgment was delivered by me on 16 November 2018 at 2 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar ………………………….. Date………………………….…

Hunter v Auckland Council [2018] NZHC 2975 [16 November 2018]

The disbursements application

[1] Mr Hunter, the applicant, sought to judicially review decisions made by the Auckland Council under the Resource Management Act 1991. Those decisions had the effect of granting resource consent to the second and third respondents on an unnotified basis. Before the matter proceeded to a hearing, the second and third respondents notified the Council and Mr Hunter that they had lodged a fresh application for resource consent, to proceed on a limited notified basis. Mr Hunter’s proceedings were ultimately resolved by Mr Hunter filing a notice of discontinuance, with acknowledgment from the Court that he would not be subject to an adverse costs award.1 Mr Hunter was self-represented throughout the proceedings and now seeks recovery of various disbursements.

[2] In earlier minutes in this file, Lang J and I separately observed that Mr Hunter was the substantively successful party and therefore ought to be awarded his reasonable disbursements.2 The parties have not, however, been able to agree on all the disbursements to be awarded to Mr Hunter.

Claimed disbursements

[3] Disbursements are expenses “paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs”.3 Expenses meeting that definition will be awarded if “specific to the conduct of the proceeding”, “reasonably necessary” and “reasonable in amount.”4

[4] I note at the outset that several of Mr Hunter’s claimed disbursements are uncontroversial and consented to by the respondents — in particular (and by reference to a schedule of disbursements set out in Mr Hunter’s memorandum), court fees (items C, J and K), fees related to an expert witness’s opinion (item D) and an Auckland Council fee to obtain a property file (item I). I propose to award those disbursements.

1      Under r 15.23 of the High Court Rules 2016, a plaintiff who files a notice of discontinuance is not liable for a costs award where “the court otherwise orders”.
2      Hunter v Auckland Council, Minute, Lang J, 26 July 2018; Hunter v Auckland Council, Minute, Fitzgerald J, 6 September 2018.
3      High Court…

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: [2018] NZHC 2975
Decision Date: 16 November 2018

CaseChat Overview and Summary

In Hunter v Auckland Council, Keith Mervyn George Hunter sought to challenge decisions made by the Auckland Council under the Resource Management Act 1991. The Council had granted resource consent to the second and third respondents on an unnotified basis. Mr Hunter's proceedings were ultimately resolved by him filing a notice of discontinuance, with acknowledgment from the Court that he would not be subject to an adverse costs award. Mr Hunter, who was self-represented throughout the proceedings, now seeks recovery of various disbursements.

The legal issues before the court were whether certain expenses claimed by Mr Hunter as disbursements were specific to the conduct of the proceeding, reasonably necessary, and reasonable in amount. Disbursements are expenses "paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor's bill of costs". The court had to consider whether these expenses met the criteria to be awarded as disbursements under the High Court Rules 2016.

The court held that some of the claimed disbursements were uncontroversial and consented to by the respondents. However, other claimed disbursements were challenged by the respondents on the grounds that they were not specific to the conduct of the proceeding, reasonably necessary, or reasonable in amount. The court examined each of the disputed disbursements and determined which ones were properly awardable. For example, the court found that Mr Hunter was entitled to a contribution to the costs incurred by him for legal advice, as it was reasonable in the circumstances and helped him prepare for the proceedings. However, the court found that other expenses, such as planning fees and loan interest, did not meet the criteria for disbursements.

In conclusion, the court awarded Mr Hunter certain disbursements but denied others. The respondents were jointly liable for the costs award. The court ordered the respondents to pay Mr Hunter the disbursements claimed in his memorandum, excluding certain items, and limited the quantum of legal fees to $5,500.00.

Orders