Maniapoto v Te Nehenehenui Trust

[2023] NZHC 1663

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-254

[2023] NZHC 1663

UNDER

Section 13 of the Senior Courts Act 2016 and Part 19 of the High Court Rules 2016

IN THE MATTER

of breach of fiduciary relationship or obligation and estoppel

BETWEEN

HAROLD MANIAPOTO

Plaintiff

AND

TE NEHENEHENUI TRUST

Defendant

Hearing:

On the papers

Appearances:

D Maniapoto for the Plaintiff

M Mahuika and N Milner for the Defendant

Judgment:

30 June 2023

JUDGMENT OF GAULT J

(Costs)

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

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr C Tennet, Barrister, Lower Hutt

Ms D Maniapoto (plaintiff’s instructing solicitor), Kihikihi Mr M Mahiuka and Mr N Milner, Kahui Legal, Wellington Copy to:

Mr G Melvin, Ms L Theron and Ms I Wilson, Crown Law, Wellington

MANIAPOTO v TE NEHENEHENUI TRUST [2023] NZHC 1663 [30 June 2023]

[1]                 In my judgment dated 15 March 2022 dismissing applications for interim injunction and freezing orders in relation to settlement of the historic claims of Maniapoto against the Crown, I indicated that the defendant was entitled to costs.1

[2]                 The parties were unable to agree costs. By memorandum dated 12 April 2022, the defendant sought 2B costs of $20,554 and disbursements of $110, totalling

$20,664.

[3]                 The plaintiff sought extensions of time to respond and the issue of costs was adjourned by agreement to allow further discussion between the parties.

[4]                 After a year, the parties have still not reached agreement, and on 24 May 2023 the  plaintiff  filed  a  memorandum  proposing  reduced  costs.   On  26  May  2023, I indicated that I would determine costs on the papers based on the memoranda already filed.

[5]                 In the meantime, the Maniapoto Claims Settlement Act 2022 has been enacted and the defendant Maniapoto Māori Trust Board has been replaced with the post- settlement governance entity Te Nehenehenui Trust.

[6]                 Ms Maniapoto, for the plaintiff, emphasised the finding in my judgment that there was a serious question to be tried as to whether the defendant acted in breach of fiduciary duty, albeit I concluded that in relation to a claim for non-monetary substantive relief there was not a serious question to be tried. She also submitted that costs are discretionary, and that the appropriate daily recovery rate is normally two- thirds of the category 2B daily rate. She submitted that the rate of two-thirds of $2,390 per day should apply. She also submitted that the defendant inflated costs by overlooking relevant, applicable rules and their contributory conduct of non- compliance and non-transparency in the interlocutory proceedings. In particular, she seeks a reduction in respect of items 23 (filing opposition), 30 (preparation of affidavit) and 32 (preparation for hearing).

1      Maniapoto v Maniapoto Māori Trust Board [2022] NZHC 455 at [70].

[7]                 As already indicated, the defendant is entitled to costs. It succeeded on both applications. This is not a case where costs should be reduced on the basis that despite succeeding overall, the defendant failed in relation to an issue which significantly increased costs.2

[8]                 As Ms Maniapoto submitted, as a general principle the appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application.3 However, schedule 2 of the High Court Rules 2016 provides that the appropriate daily recovery rate for category 2 proceedings is $2,390. That is two-thirds of the daily rate considered reasonable. The general principle does not require a further reduction from the appropriate daily recovery rate.

[9]In relation to the specific challenges to the items claimed by the defendant:

(a)I disallow items 30 and 32, totalling $9,560. Items 24 and 26, totalling

$4,780, are the relevant items for preparation of submissions for, and appearance at, interlocutory hearings.

(b)The instances of the defendant’s claimed non-compliance with the rules and duty to the Court do not meet the relevant threshold in r 14.7 of contributing unnecessarily to the time and expense of the proceeding or step in it. They do not warrant a reduction.

(c)In relation to the defendant’s claimed lack of transparency, I accept there appears to have been an unhelpful delay between service of the application for interim injunction on 29 October 2021 seeking to restrain the defendant from signing a deed of settlement with the Crown and the defendant’s advice on 12 November 2021 that the deed had already been signed. However, this too was not shown to have contributed unnecessarily to the time or expense of the proceeding or a step in it. In relation to the criticism of the defendant’s description of

2      High Court Rules 2016, r 14.7(d).

3      Rule 2016, r14.2(1)(d).

the accelerated process of the Bill through Parliament, I am not in a position to assess whether there was a lack of transparency as opposed to simply a speedier process than envisaged but in any event again I am not satisfied that this contributed unnecessarily to the time or expense of the applications.

(d)In relation to the disputed claim for two notices of opposition, since the plaintiff filed separate applications for an interim injunction and a freezing order and the defendant filed two notices of opposition, the defendant is entitled to claim for filing both notices. I decline to reduce this item. There is no double counting in respect of the submissions and hearing.

(e)I decline to award the plaintiff costs in respect of its costs memorandum. While the Court has power to award costs on costs, it is generally reluctant to do so.4 Here, each side has had a measure of success on costs and the quantum involved and the delay weigh against an award by way of offset.

Result

[10]              The defendant is entitled to 2B costs of $10,994 plus disbursements of $110, totalling $11,104.

Gault J

4      See for example Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; Barry Park Investments Ltd v Body Corporate Number 95388 [2016] NZHC 1527 at [25]; Epsom Woods Ltd v Waitakere Farms Ltd [2020] NZHC 3137 at [4]; Norrie v Crown Range Holdings Ltd [2022] NZHC 898 at [28]; DGL Manufacturing Ltd v Simmonds [2022] NZHC 1434 at [18]; Legler v Formannoij [2022] NZHC 1804 at [12] and Neal v Neal [2022] NZHC 2625 at [33].