KI Commercial Limited v Christchurch City Council

[2019] NZHC 363

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-001004

[2019] NZHC 363

BETWEEN

KI COMMERCIAL LIMITED

Appellant

AND

CHRISTCHURCH CITY COUNCIL

Respondent

Hearing:

On the papers

Appearances:

J S Angland for Appellant

M K Prendergast and E K Osborne for Respondent

Judgment:

7 March 2019

JUDGMENT OF DUNNINGHAM J RE: COSTS DECISION

AThe appellant’s request to defer the fixing and payment of costs until after any application/appeal relating to the judgment dated 23 May 2017 is finally disposed of, is declined.

BThe appellant is to pay the respondent costs, on a 2B basis, in respect of steps taken in the proceedings up to the judgment dated 23 May 2017.

CThe appellant is to pay the respondent costs, on a 2B basis, in respect of steps taken in the proceedings in relation to the jurisdictional issue which was determined by the Court in the judgment dated 8 November 2018.

KI COMMERCIAL LIMITED v CHRISTCHURCH CITY COUNCIL [2019] NZHC 363 [7 March 2019]

[1]                 This application for costs has its genesis in my decision of 23 May 2017.1 In that decision I dismissed the appellant’s appeal in relation to decisions made by the Independent Hearing Panel when preparing the Replacement District Plan for Christchurch, which impacted on the appellant’s ability to redevelop its commercial land in the suburb of Addington (the 2017 decision). I reserved the issue of costs.

[2]                 The appellant then sought leave to appeal the 2017 decision from the Court of Appeal. By consent, the parties agreed to place the issue of costs on hold until after the application to the Court of Appeal was disposed of. Leave to appeal was declined by the Court of Appeal on 20 October 2017.2

[3]                 In August 2018, the appellant filed an interlocutory application for recall of the 2017 decision. The respondent filed an objection to jurisdiction, arguing that the High Court was functus officio and an application for recall could only be made to the Court of Appeal. The jurisdictional issue was heard by Justice Nicholas Davidson on 29 October 2018. He dismissed the application for want of jurisdiction, saying only the Court of Appeal could deal with an application for recall (the 2018 decision).3 Again, costs were reserved.

[4]                 The appellant subsequently indicated that it would be seeking leave to bring a special appeal against the 2017  decision.  However,  it  has  not  done  so  in  the four months since the 2018 decision issued.

[5]                 By memorandum dated 24 June 2018, counsel for the respondent sought that the issue of costs on both the 2017 decision and the 2018 decision be finally determined. I made timetabling directions as a consequence, and said that costs would be determined on the papers unless I needed to hear from counsel.

[6]                 The appellant has since filed a memorandum in respect of cost issues. In it, it says:

1      KI Commercial Ltd v Christchurch City Council [2017] NZHC 1076.

2      KI Commercial Ltd v Christchurch City Council [2017] NZCA 480.

3      KI Commercial Ltd v Christchurch City Council [2018] NZHC 2896.

(a)The delay in filing the application for special leave to appeal is due to senior counsel’s commitments. Mr Hodder QC has now confirmed he will act and that “the application for special leave could be filed as early as 31 March 2019”.

(b)It is submitted on behalf of the appellant that costs should be deferred until the issue of whether the 2017 decision should be recalled and reheard has been determined.

(c)In respect of the 2018 decision, it says “that was on a very narrow jurisdictional issue only”, with submissions of both counsel only taking a quarter of a day, and costs should not be determined on a 2B basis, but rather on a 2A basis.

[7]The respondent has filed a memorandum in reply. In summary, its position is:

(a)The respondent was successful in both the 2017 and 2018 decisions and any delay in the determination of costs is prejudicial to it, particularly where the appellant has demonstrated no urgency to advance its intimated application to the Court of Appeal.

(b)Such delay is contrary to the principle that the determination of costs should be expeditious.

(c)The respondent has made it clear to the appellant since August 2018 that its allegations should have been raised in the Court of Appeal.

(d)There is no certainty as to when, or even if, an application to the Court of Appeal will be filed.

(e)The respondent questions whether the unavailability of senior counsel properly explains the delay, as the grounds on which the appeal will be advanced are already identified and it is not clear whether the appellant has approached other senior counsel, including

Mr Hughes-Johnson QC who appeared on behalf of the appellant in the Court of Appeal, to advance the case.

(f)There is no prejudice to the appellant as a costs award will not prevent the appellant from filing an application.

(g)In relation to the 2018 decision, there is no reason to defer the determination of costs on that as it has not been appealed.

(h)The respondent also rejects the suggestion that the proceedings should be categorised as Band A when the matter was of average complexity and there was no direct authority on the jurisdictional issue arising. Accordingly, the proper categorisation is 2B.

Costs on the 2018 decision

[8]                 I am satisfied that there is no reason to defer the determination of costs on the 2018 decision as that is not subject to appeal. The only issue is whether costs should be calculated using a Band A or Band B time allocation under sch 3 of the High Court Rules 2016.

[9]                 I accept the respondent’s submission that the appeal was of average complexity. The judgment traversed the competing contentions as to whether an allegation of apparent bias must be heard by the Judge against whom the allegation is made. The appellant’s view was that it should be, particularly where, as here, the judgment had not been sealed and the Court of Appeal had not ruled on the merits of the substantive appeal. The contrary view, raised by the respondent, was that bias raised post-judgment should be dealt with on appeal. There was no direct authority on the circumstances which arose and the competing arguments sought to reason by analogy with other cases involving different factual scenarios.

[10]              I am readily satisfied that in the circumstances this was a case of average complexity which would have taken an average amount of time to prepare. The fact that the hearing only took a quarter of a day is recognised by the respondent only

claiming for that time allocation. It does not, in my view, determine the time reasonably needed for the other steps. The proper categorisation is therefore 2B.

[11]              Accordingly, costs are awarded in favour of the respondent on the steps taken in relation to the 2018 decision on a 2B basis, as sought by the respondent.

Costs on the 2017 decision

[12]              The application for costs arising from the 2017 decision is slightly different. The parties had originally agreed it was appropriate to defer addressing costs until the Court of Appeal disposed of the matter. However, at that stage it was not anticipated that the subsequent application for recall would be made.

[13]              In normal circumstances, where appeal rights are being pursued expeditiously, the Court might defer the issue of costs until final disposition. The distinction here is that the appellant has not expeditiously pursued the matter to a conclusion. Having received the 2018 decision in early November, it has failed to pursue its case in the Court of Appeal to date. Even at this juncture it can intimate no more than that an application to that Court “might be filed by 31 March 2019”. While the appellant may be content to delay to secure counsel of its choice, I do not consider it is fair to make the respondent await the payment of costs for an indeterminate period.

[14]              I see no reason why costs should not be determined now, particularly where quantum is not challenged. Accordingly, I order that costs are awarded, on a 2B basis in relation to steps taken in the proceedings up to the 2017 decision, as set out in the memorandum of counsel for the respondent dated 24 January 2019.

[15]              The appellant offers no cogent reason for staying execution of such a judgment (which in practical terms is what it is seeking given there is no material dispute as to quantification of costs). There is no prejudice identified as resulting to the appellant if it has to pay the costs award of approximately $10,500. It does not suggest it is impecunious and it has already paid security for costs in the sum of $2,230 which can be released in part payment of this sum. There is also no reason to think that a public body such as the respondent could not promptly repay costs should a further challenge to the decision be pursued to a successful conclusion and the costs award set aside.

[16]              The request to defer both the fixing and payment of costs in relation to the 2017 decision is therefore declined.

Solicitors:

Ronald W Angland & Sons, Leeston Simpson Grierson, Christchurch