Independent Fisheries Limited v Minister for Canterbury Earthquake Recovery

[2012] NZHC 2572

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000500 [2012] NZHC 2572

BETWEEN  INDEPENDENT FISHERIES LIMITED First Applicant

ANDR S PEEBLES Second Applicant

ANDCASTLE ROCK ESTATE LIMITED Third Applicant

ANDG F CASE, M M CASE AND MGM CASE Fourth Applicants

ANDPROGRESSIVE ENTERPRISES LIMITED

Fifth Applicant

ANDCLEARWATER LAND HOLDINGS LIMITED

Sixth Applicant

ANDTHE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY

First Respondent

ANDCANTERBURY REGIONAL COUNCIL, CHRISTCHURCH CITY COUNCIL, WAIMAKARIRI DISTRICT COUNCIL, SELWYN DISTRICT COUNCIL AND NEW ZEALAND TRANSPORT AGENCY Second Respondents

Hearing:         Dealt with on the papers

Judgment:      4 October 2012

JUDGMENT OF CHISHOLM J AS TO COSTS

INDEPENDENT FISHERIES LIMITED V THE MINISTER FOR CANTERBURY EARTHQUAKE RECOVERY HC CHCH CRI-2012-409-000500 [4 October 2012]

[1]      In the judgment delivered on 24 July 2012 I expressed a preliminary view that the applicants should receive costs against the first respondent on a 3C basis. Counsel were invited to submit memoranda if they wished to be heard.   Memoranda have now been lodged on behalf of the applicants and first respondent.

[2]      While the first respondent accepts that the proceedings should be categorised “3”, it submits that individual steps need to be considered separately and that not all of them warrant categorisation as “C”.  It is submitted that the following should be on a “B” basis:   commencement of the proceeding; preparation for the first management conference; filing a memorandum for the first case management conference; appearance at first case management conference; and preparation of list of issues, authority and common bundle.  The first respondent contends that the costs award should be $59,829, plus disbursements.

[3]      In response the applicants support an award of costs on a 3C basis for all items.  They contend that in all the circumstances, particularly the truncated nature of the preliminary steps, the first respondent’s approach is unrealistic.   They also emphasise that the proceeding involved several parties, each of whom had earlier been separately represented.   On the applicant’s calculation the award should be

$102,018, plus disbursements of $14,831.68.   Excluding disbursements the actual costs incurred by the applicants with trial counsel were $145,775.  This does not take into account additional costs incurred by individual applicants in respect of their own solicitors/counsel.

[4]      Leave is granted for the first respondent to file a memorandum in reply. Three points are raised in that memorandum:   it is wrong in principle to rely on matters that cannot be claimed as separate steps; there is an element of double counting and the applicant’s reliance on the preparation of five further affidavits in relation to the preparation of an amended statement of claim; second  and third counsel should be at half rates.

[5]      When approaching the issue of costs the Court should not close its mind to the realities of the situation.   Notwithstanding its complexity, the proceeding was truncated and the pre-trial orders made by Miller J involved considerable additional

work.  I am satisfied that category 3 is appropriate for each step.  However, I accept that item 35 should be 1.25 days, not the 2.5 days sought.    Disbursements are approved.

Solicitors:
FMR Cooke QC,  [email protected]

Pru Steven,  [email protected]

Russell McVeagh,  [email protected] Anthony Hughes Johnson QC, Christchurch,  [email protected] Crown Law, Wellington,  [email protected]

Wynn Williams, Christchurch,  [email protected] Wynn Williams, Christchurch,  [email protected] Simpson, Grierson, Wellington,  [email protected]

Chapman Tripp, Christchurch,  [email protected]

Anderson Lloyd, Dunedin,  [email protected] Anderson Lloyd, Christchurch,  [email protected] Adderley Head,  [email protected]