Mangawhai Ratepayers and Residents' Association Inc v Northland Regional Council

[2019] NZHC 114

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2015-488-95

[2019] NZHC 114

BETWEEN

MANGAWHAI RATEPAYERS AND RESIDENTS’ ASSOCIATION INC

First Plaintiff

AND

RICHARD BRUCE ROGAN & HEATHER ELIZABETH ROGAN

Second Plaintiffs

NORTHLAND REGIONAL COUNCIL
First Defendant

KAIPARA DISTRICT COUNCIL

Second Defendant

Hearing:	On the papers
Judgment:	11 February 2019

COSTS JUDGMENT OF DUFFY J

This judgment was delivered by me on 11 February 2019 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Simpson Grierson, Wellington

Henderson Reeves Connell Rishworth, Whangarei Brookfields, Auckland

MANGAWHAI RATEPAYERS AND RESIDENTS’ ASSOCIATION INC & ROGAN v NORTHLAND REGIONAL COUNCIL & KAIPARA DISTRICT COUNCIL [2019] NZHC 114 [11 February 2019]

[1]    On 27 March 2018 the Court of Appeal delivered a decision allowing in part the defendants’ appeal against the decision I delivered in this proceeding.1 In accordance with that outcome the Court of Appeal directed that the award of costs in this Court be determined “in light of …” the judgment delivered by the Court of Appeal.2

[2]    The defendants consider the measure of success that they have achieved in the appeal is substantial. In accordance with the general principle that costs follow the event they seek a joint award of costs on a category 2B basis, which they calculate to be $44,154.00 together with disbursements of $1,003.96.

[3]    On the other hand, the plaintiffs argue that costs should lie where they fall. In their view, much of the reasoning of the judgment of this Court was upheld by the Court of Appeal, which warrants each side bearing their own costs.

[4]    The plaintiffs have carefully traversed the Court of Appeal’s judgment for the purpose of showing where the reasoning in the judgment agreed with that expressed in this Court’s judgment.

[5]    At times, the plaintiffs have been critical of the Court of Appeal’s reasoning; and have sought to identify contradictions in the Court of Appeal’s judgment. This was done despite the plaintiffs being unsuccessful in their application to the Supreme Court for leave to appeal against the Court of Appeal’s judgment. The defendants contend that the plaintiffs have made inappropriate submissions insofar as the plaintiffs’ submissions essentially invite this Court to review the Court of Appeal’s judgment after the Supreme Court declined leave to do so. I accept the defendants’ argument in this regard. Further, I accept the defendants’ complaint that it is inappropriate for the plaintiffs to make submissions of that nature.

[6]    The outcome for plaintiffs in the Court of Appeal was substantially different from what it was in this Court. The judgment of this Court set the impugned rates aside, whereas the judgment of the Court of Appeal viewed the identified errors as

1      Northland Regional Council v Rogan [2018] NZCA 63.

2 At [96].

technical and validated their effect. In short, there was a complete reversal of the outcome in this Court. In such circumstances, I consider the defendants must be viewed as successful parties who, in accordance with the general principle that costs follow the event, are entitled to costs in this Court. Whatever measure of approval the Court of Appeal may have given to findings of this Court that favoured the plaintiffs, such approval is not enough to derogate from the application of general principle. Here the event has favoured the defendants and costs to them must follow.

[7]    The plaintiffs have also been critical of the defendants’ calculation of the scale costs in certain respects. The defendants have not addressed those criticisms. I shall deal with each criticism in turn.

[8]    The plaintiffs content that the preparation of the memorandum of 29 October 2015 seeking a timetable extension amounted to an indulgence for which the defendants are not entitled to costs. Whilst I accept that memoranda seeking extensions of timetable directions are an indulgence sought by the parties who make this request, nonetheless such requests are often part and parcel of the normal run of litigation. This is not a reason to deny them costs.

[9]    The plaintiffs’ claim there is an element of double up in the defendants claiming .5 days in respect of submissions on 19 December 2016 concerning relief, and similarly a large element of double up in claiming a further 1.5 days for submissions on 5 July 2017 concerning s 120. Whilst there may have been an element of double up I do not consider this sufficient to disqualify the defendants from their claim for costs in this regard. An interim judgment was given in this Court with the parties being given a further opportunity to make submissions on relief. It necessarily followed that questions of relief which may have been addressed in the first hearing were subsequently revisited later. That is an integral characteristic of split hearings, particularly when the parties at the first hearing have no expectation of the Court delivering an interim decision with leave being given to make further submissions on relief. I do not see the fact the defendants addressed questions of relief in two sets of submissions for separate hearings as being a double up, and insofar as it might be characterised in that way it was through no fault of the defendants. I consider they are

entitled to seek costs for the time they actually spent on their submissions in relation to 19 December 2016 and 5 July 2017.

[10]   The plaintiffs say the defendants have sought excessive preparation time by seeking a further three days preparation for the relief hearing. I consider in the context of this proceeding that the preparation time the plaintiffs have sought is appropriate. In the end the key issue which resulted in the defendants’ success in the Court of Appeal was their submissions on relief. Before this Court the defendants spent considerable effort in attempting to persuade this Court that any errors it might have found were technical and susceptible to validation under s 5 of the Judicature Amendment Act 1972. The defendants put forward thorough, well prepared substantive arguments which, although rejected by this Court, ultimately found favour in the Court of Appeal. I consider the time and effort spent in preparing those arguments for hearing in this Court warrants recognition in the form of the preparation time they seek.

[11]   In conclusion, I reject the various criticisms the plaintiffs’ make regarding the defendants’ scale costs calculation.

Result

[12]   It follows that I find the defendants are jointly entitled to the costs and disbursements they seek: namely, costs in the sum of $44,154.00 and disbursements of $1,003.96.

Duffy J