Maehl v Lenihan

[2019] NZHC 1955

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-708

[2019] NZHC 1955

BETWEEN

ANDREW MAEHL and WINNIFRED CHARLESWORTH
Appellant

AND

JOHN LENIHAN and JANE GREENSMITH

Respondents

Hearing:	on the papers at Auckland
Appearances:	Z Matheson for the Appellants S Stienstra for the Respondents
Judgment:	14 August 2019

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 14 August 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MAEHL v LENIHAN [2019] NZHC 1955 [14 August 2019]

[1]                 The respondents seek costs after the appellants abandoned their appeal against a decision of the Environment Court. The Environment Court decision appealed from had refused to grant a permanent enforcement order and discharged a temporary enforcement order protecting a kauri located at 40 Paturoa Road, Titirangi, Auckland.

[2]                 The respondents seek costs on a 2B basis on the abandonment, in the total sum of $7,582. Counsel for the respondents’, Ms Stienstra, submits that the respondents have substantively succeeded and the amount sought simply reflects the appearances necessary up until the appeal was finally abandoned, noting that by the time the appeal was abandoned preparations had already commenced on submissions in respect of the appeal hearing.

[3]                 Ms Matheson for the appellants, although noting a public interest component, does not dispute that some costs are payable. The appellants however do take issue with some of the steps claimed by the respondents and submit a total award of $2,230 is appropriate.

Discussion

[4]                 Having considered the memoranda filed on behalf of the parties, I am satisfied that costs should be awarded as sought by the respondents. In reaching this conclusion I have been assisted by earlier judgments in both the High Court and Environment Court and in particular the costs judgment of His Honour Judge J A Smith in relation to the judgment under appeal. In that judgment, Judge Smith did give some credit for public interest considerations, as well as some procedural delays caused by the respondents, but imposed a significant award of costs on the basis of the overall lack of merit of the proceedings brought by the appellants that were challenged by the present appeal. In the circumstances, I am satisfied that any adjustment for public interest has already been accommodated in the Environment Court and that there was no public interest in pursuing this appeal which, even on the face of the judgment under appeal, would appear to have had no prospect of success.

[5]                 Likewise, the steps claimed by the respondents are in order and in particular the three matters challenged by the appellants; item 53, commencement of response to

appeal; item 56/23, preparation of written submissions and item 14, preparation for issues conference on 21 June 2019. Specifically, in relation to these issues:

(a)Item 53 does not require the filing of any specific document and it is to be expected upon the filing of any appeal that the respondents would have taken preliminary steps to respond;

(b)with regard to the preparation of written submissions, Ms Stienstra has claimed for one day rather than the three provided for, noting that beginning preparation of submissions at that point was reasonable, given the appellants did not advise the respondents that the appeal would be abandoned until 9 June 2019, when the hearing was set to proceed on 19 June 2019; and

(c)preparation for the issues conference on 21 June 2019 was required because, although the appellants had by then confirmed the appeal was to be abandoned, the exact position remained somewhat unclear due to an issue arising with fresh evidence purported to have been filed by the appellants, in respect of which they claimed confidentiality. As a result, it was necessary for Ms Stienstra to prepare for the conference, and indeed could have claimed for attendance at that conference, although she has not done so.

Decision

[6]                 The appellants Andrew Maehl and Winnifred Charlesworth are to pay the respondents John Lenihan and Jane Greensmith the sum of $7,582 on the abandonment of the appeal.

Powell J