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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1663
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the case of Maniapoto v Te Nehenehenui Trust, the defendant, Te Nehenehenui Trust, sought costs following unsuccessful applications for interim injunction and freezing orders made by the plaintiff, Harold Maniapoto, in relation to historic claims against the Crown. The Trust was entitled to costs as it succeeded on both applications, but the plaintiff contested the amount claimed, arguing that certain costs were inflated and that the Trust had not complied with certain rules and duties. The plaintiff also sought a reduction in the daily recovery rate. The court considered the arguments and, after examining the memoranda filed by both parties, determined the costs on the papers. The court found that the Trust was entitled to category 2B costs of $10,994 and disbursements of $110, totalling $11,104.

The legal issues before the court involved the determination of the appropriate daily recovery rate and the disallowance of certain costs claimed by the Trust. The plaintiff argued for a reduction in the daily recovery rate to two-thirds of the category 2B daily rate, while the Trust contended that the category 2B daily rate was already at the appropriate level. The court noted that the general principle for determining costs was that the appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable, which aligns with the category 2B daily rate as per the High Court Rules 2016. Thus, the court held that no further reduction was necessary. The court also examined specific items of the costs claimed by the Trust, disallowing certain items on the basis that they did not meet the threshold for being considered as contributing unnecessarily to the time and expense of the proceeding.

The court's reasoning was based on established principles of costs determination in interlocutory proceedings. It upheld the entitlement of the Trust to costs as it had succeeded on both applications, rejecting the plaintiff's arguments for a reduction in the daily recovery rate and disallowance of certain costs. The court found that the Trust's conduct, while not ideal, did not meet the threshold for contributing unnecessarily to the time and expense of the proceeding, as per rule 14.7 of the High Court Rules 2016. The court declined to award the plaintiff costs in respect of its costs memorandum, as each side had a measure of success on costs and the quantum involved and the delay weighed against an award by way of offset.

The final orders of the court were that the defendant, Te Nehenehenui Trust, was entitled to category 2B costs of $10,994 and disbursements of $110, totalling $11,104. The court did not award the plaintiff costs in respect of its costs memorandum.

Orders