Keir v Auckland Council

[2023] NZHC 3303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-446

[2023] NZHC 3303

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

JOHN RICHARD KEIR and RACHAEL

KEIR for themselves and as trustees of the JOHN RICHARD KEIR TRUST AND RACHAEL SIMMS TRUST

Applicants

AND

AUCKLAND COUNCIL

First Respondent

ROBERT SIMMS and LYNETTE JEAN SIMMS

Second Respondents

Hearing:

On the papers

Appearances:

M Casey KC and A J Davidson for the Applicants K A Fraser and R E Argyle for the First Respondent

DTD Horton and T Gibbons for the Second Respondents

Judgment:

21 November 2023

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 21 November 2023 at 3:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Solicitors / Counsel: Mr M Casey KC and Ms A J Davidson, Barristers, Auckland Mr N Woods (applicants’ instructing solicitor), Rice Craig, Papakura

Ms K Fraser and Ms R E Argyle, Rice Speir, Auckland Ms DTD Horton, Barrister, Auckland

Mr T Gibbons (second respondents’ instructing solicitor), Thomas Gibbons Law, Hamilton

KEIR v AUCKLAND COUNCIL [2023] NZHC 3303 [21 November 2023]

[1]    Further to my judgment of 30 June 2023 granting the Keirs’ application for judicial review and quashing decisions of Auckland Council,1 the parties were unable to agree costs. The Keirs seek costs on a 2B basis, together with disbursements, totalling $37,765.63. The respondents oppose.2

Background

[2]    The Keirs challenged Auckland Council’s decisions of 19 May 2021 not to notify the Simms’ application for, and to grant, subdivision consent to the Simms to allow for the division of a family farm through rearrangement of titles owned by the Simms, their son Bruce Simms and the Keirs.

[3]In May 2022, the Council and the Simms each filed statements of defence.

[4]    On 1 June 2022, Jagose J directed  the  allocation  of  a  two-day  hearing. The hearing was allocated to commence on 3 April 2023.

[5]    On 25 August 2022, the Council advised that it did not intend to file evidence or submissions and would abide the decision of the Court.

[6]    On 17 January 2023, Jagose J issued a minute indicating that the Court nonetheless expected the Council’s evidence to meet its “so-called ‘duty of candour’”

– that those whose decisions are under challenge have “a duty to explain the decision- making process, the relevant factual and other circumstances and the reasons for the decision”.3

[7]    On 9 February 2023, the Simms also advised that they did not intend to file evidence or submissions and would abide the decision of the Court.

[8]    There was no appearance by or for the Council at the hearing. Ms Horton appeared for the Simms but during the hearing sought, and was granted, leave to be excused. The hearing effectively proceeded by way of formal proof.

1      Keir v Auckland Council [2023] NZHC 1658, (2023) 24 ELRNZ 886.

2      Reply memoranda were also filed by the applicants, and then by the Simms, with leave.

3      Citing Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [105].

Discussion

[9]    A key general principle applying to the determination of costs in r 14.2 of the High Court Rules 2016 is that the party who fails with respect to a proceeding should pay costs to the party who succeeds.4

[10]   However, the Court may refuse to make an order for costs or may reduce the costs otherwise payable in certain circumstances as set out in r 14.7.

[11]   The Council submits that it is in the interests of justice for the Court to exercise its discretion to refuse to award costs or, alternatively, that costs should be reduced. The Council relies on r 14.7(g):

some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious.

[12]   The Council submits that it acted responsibly in abiding the decision of the Court and providing early notice to the Court and the parties of its intention to do so. It submits that it gave notice of its intention to abide early in the proceeding and prior to the filing of any evidence, and that it was satisfied, and remained satisfied, throughout the proceeding that its duty to the Court would be met by abiding as all of the relevant information would be before the Court and the decision and process would speak for itself. It says that, as the second respondents also opted to abide, the case proceeded essentially by way of a half day formal proof hearing (saving the parties substantial cost). The Council also relies on the caution against local authority decision-makers from entering the fray, as indicated in Fraser v Central Hawkes Bay District Council.5

[13]   The Simms submit that costs should lie where they fall or, alternatively, that costs should be apportioned so that the Council pays the majority of any costs as it was the Council’s decision that was under review.

4      High Court Rules 2016, r 14.2(1)(a).

5      Fraser v Central Hawkes Bay District Council [2021] NZHC 2981 at [16]. See also Belgiorno- Nettis v Auckland Unitary Plan Independent Hearings Panel [2022] NZHC 3623.

[14]   The Simms submit that the proceeding was entirely unnecessary as the resource consent that was subject to challenge can only be fully implemented if the Keirs (being the landowners of two of the subject sites) agree – albeit the Simms accept that, but for a caveat in place pending resolution of separate trust proceedings, stage 1 of their consent could  have  been  implemented  without  the  Keirs’  agreement.  The Simms submit that their decision to defend was justified because in that trust proceeding the Keirs seek the land around their house. The Simms also submit the Keirs have suffered no prejudice as a result of the timing of the Simms’ election to abide on 9 February 2023, two weeks before the filing of the Keirs’ evidence, before hearing fees were due and seven weeks before the hearing date.

[15]   The approach to costs in a judicial review context was summarised by the Court of Appeal in Hong v Deliu:6

… a defendant joined in a proceeding has, essentially, three options: (1) to defend, (2) to abide (either conditionally or unconditionally)7 or (3) to admit the cause of action.8 These have different costs consequences. Costs incurred (and recoverable) by the plaintiff will be greater in the former case than the latter two. A defendant who abides still puts the plaintiff to the cost of a trial, albeit a less strenuous one. A defendant who admits averts that cost for the plaintiff judgment in such a case may be entered by formal proof.9 Where either the second or third option has been taken, the course is out of the ordinary. Even though the level of costs will be less than in the first instance, a Court will still need to consider, however briefly, whether it is just that the usual scale measure of costs should be visited on that defendant.

[16]   Also, as Toogood J said in Royal Forest and  Bird  Protection  Society  of New Zealand Inc v Northland Regional Council:10

It cannot be said that a party abiding the decision of the Court can never be liable for any costs; ultimately, the task of the Court is to make an assessment of overall justice as between the particular parties.11 Where a defendant abides the Court’s decision and does not adopt an unreasonable position, they will not necessarily be required to bear the full costs of court proceedings.12 On the other hand, an error or other conduct by a defendant, requiring a plaintiff to

6      Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [23].

7      For example, and as in Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 itself, the defendant may reserve the right to be heard on some aspect of the case – in particular on costs.

8      See High Court Rules, r 15.16(1).

9      Rule 15.16(3).

10     Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council

[2019] NZHC 449, [2019] NZAR 587 at [41].

11     Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council HC Invercargill CIV- 2008-425-518, 19 May 2009 at [18].

12     Wang v District Court [2015] NZHC 1611, [2015] NZAR 1678 at [26].

issue proceedings to vindicate the plaintiff’s rights will suffice to expose an abiding defendant to some liability for costs.13 The extent of contribution required will depend on the extent of the original error and the reasonableness of the defendant's conduct thereafter.

[17]   The Council did not abide from the outset. It filed a statement of defence which put the Keirs to proof, including in relation to the Council’s decision-making process. The Keirs’ evidence would have been more limited, and their costs would have been lower, if they had not been put to proof. The only reduction in costs as a result of the respondents’ decision to abide was a reduction in hearing time from the two days allocated, which is reflected in the amount claimed.

[18]   Also, it is unfortunate that, despite Jagose J’s minute, the Council assumed that an appearance at the hearing was not required, particularly once it knew that the Simms were no longer a contradictor, on the basis that the Court would request its assistance in advance if it were required. However, the non-appearance at the hearing did not materially add to the applicants’ costs.

[19]   As Mr Casey KC submitted, the Council knew of the Keirs’ concerns prior to making the decisions in question. It knew of their real interest in the application and that the resource consent under review would have direct impacts on them. Notwithstanding its knowledge of those matters, it proceeded to assess the Simms’ application on an erroneous basis, leaving the Keirs with no option but to bring this proceeding to protect their rights and interests.

[20]   Turning to the Simms, they also filed a defence and put the Keirs to proof. Their decision to abide came even later.

[21]   I do not consider that the Simms’ alleged inability to implement the consent nor the effect of the caveat warrant concluding that the proceeding was unnecessary in circumstances where these arguments were not raised by the Simms in the proceeding, and where the proceeding was ultimately successful.

13     Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [26].

[22]   Also, as Mr Casey submitted, the Simms must bear some responsibility for the Council’s errors given the information provided to the Council. The Court’s finding that there was “force in Mr Casey’s submission that … the information relied on by the Council in relation to the driveway was inadequate” was naturally directed towards the Council’s decision.14 Even so, the information provided was inadequate.

[23]   Further, while I accept that the applicants’ concerns were indicated to Council prior to its decisions, I reject the submission that providing inadequate information was therefore not causative of the Council’s decision at least in any relevant costs sense.

[24]   For these reasons, I consider as a matter of overall justice that costs should follow the event without reduction. The Keirs are entitled to 2B scale costs and disbursements as claimed.

[25]   The liability of each of two or more parties ordered to pay costs is joint and several unless the Court otherwise directs.15

[26]   Here, given the Council’s statement of defence and the applicants’ ultimate success in quashing the decisions, the Council should be liable for costs.  However,  I do not accept that costs should be apportioned between the respondents so that the Council pays the majority of the award.

Result

[27]   The respondents are jointly and severally liable for the applicants’ 2B costs and disbursements totalling $37,765.63.

Gault J

14     Keir v Auckland Council [2023] NZHC 1658, (2023) 24 ELRNZ 886 at [69].

15     High Court Rules 2016, r 14.14.