Mann v Far North District Council - [2022] NZHC 1843

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2021-488-65

[2022] NZHC 1843

UNDER the District Courts Act 1947

IN THE MATTER

of an appeal against the decision of the District Court

BETWEEN

LAIHA MANN, DESMOND MAHONEY, TANIA MORUNGA, DESLEY AUSTEN, CASINO HADFIELD, PARAIRE

FLETCHER and ALEXANDRA BAKER as

trustees of the NGAKAHU/NGAKOHU WHĀNAU AHU WHENUA TRUST

Appellants

AND

FAR NORTH DISTRICT COUNCIL

Respondent

Hearing: On the papers

Appearances:

R C Mark for the Appellants JGA Day for the Respondent

Judgment:

29 July 2022

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 29 July 2022 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr R C Mark, Solicitor, Kerikeri
Mr JGA Day, Law North Ltd, Kerikeri

MANN v FAR NORTH DISTRICT COUNCIL [2022] NZHC 1843 [29 July 2022]

[1] Following my judgment dated 31 March 2022 dismissing this appeal,1 the parties have been unable to reach agreement on costs. The appellants accept that the respondent is entitled to scale costs on a 2B basis, totalling $10,157.50. The respondent submits that 2B costs total $12,548 and, in addition, seeks indemnity costs for the period after a settlement offer dated 8 October 2021 or alternatively increased costs with a 25 per cent uplift from scale.

Scale costs

[2] The difference between the parties in scale costs merely reflects three additional items sought by the respondent: preparing for and filing a memorandum for a case management conference and sealing a costs award. Given that counsel for the appellant drafted the joint memorandum for the case management conference and directions were made on the papers and the conference vacated three days in advance, I allow 0.4 days for both items.

[3]Accordingly, 2B costs should be calculated on 4.85 days, totalling $11,591.50.

Indemnity / increased costs

[4] Where there has been a written without prejudice save as to costs offer, the Court may in its discretion order indemnity costs on the steps taken in the proceeding after the offer is made, if the offeror offers a sum of money that exceeds or is close to the amount of the judgment obtained by the other party or makes an offer that would have been more beneficial or close to the benefit to that party than the judgment obtained.2

[5] The Court may order increased costs if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or a step in it by failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under r 14.10 or some other offer to settle or dispose of the proceeding.3 The question is whether the appellants acted unreasonably in not accepting the offer. In assessing

1      Mann v Far North District Council [2022] NZHC 632.
2      Rules 14.10 and 14.11.
3      High Court Rules 2016, r 14.6(3)(b)(v).

whether a failure to accept a settlement offer is…

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.

Continue reading Mann v Far North District Council

Details

AGLC: Mann v Far North District Council [2022] NZHC 1843
Case: [2022] NZHC 1843
Decision Date: 29 July 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Laiha Mann and others, as trustees of the Ngākāhu/Ngākohu Whānau Ahu Whenua Trust, appealed against a decision of the District Court. The respondents were the Far North District Council. The central issue was the determination of costs incurred following the dismissal of the appeal. Specifically, the court needed to resolve the difference between the scale costs claimed by the parties and whether any indemnity or increased costs were justified.

The court began by addressing the scale costs, noting the discrepancy was due to the inclusion of three additional items by the respondents. The court allowed a portion of these items, calculating the total scale costs to be $11,591.50. Regarding indemnity or increased costs, the court assessed whether the appellants acted unreasonably in rejecting a settlement offer. It was determined that while the offer was beneficial, the appellants' counteroffer, which included a condition for the removal of an asbestos pipe, was not entirely unreasonable. The court concluded that the appellants' actions did not justify increased or indemnity costs.

The court ruled that the respondents were entitled to 2B scale costs of $11,591.50. No indemnity or increased costs were awarded, and the appellants were not ordered to pay for the period after the settlement offer. This decision highlighted the importance of assessing settlement offers in context and the need for reasonable justification in refusing such offers.

Orders