Map Transport Limited v Director of Land Transport

[2025] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2158

[2025] NZHC 1725

IN THE MATTER

of an appeal from a decision of the District Court at Auckland

BETWEEN

MAP TRANSPORT LIMITED

First Appellant

ADWIN JACOB CHANDRA
Second Appellant

AND

THE DIRECTOR OF LAND TRANSPORT

Respondent

Hearing:	On the papers
Counsel:	S Khan and M Orange for the Appellants J Papps for the Respondent
Judgment:	27 June 2025

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on Friday, 27 June 2025 at 2.30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors/Counsel:

Fortune Manning, Auckland Chapman Tripp, Wellington

MAP TRANSPORT LIMITED v THE DIRECTOR OF LAND TRANSPORT [2025] NZHC 1725 [27 June 2025]

Introduction

[1]    On 2 April 2025, I delivered a judgment on an appeal on questions of law brought by the appellants, MAP Transport Limited (MAP) and Adwin Chandra, against a District Court decision refusing an appeal by the appellants in relation to decisions of the respondent, the Director of Land Transport (Director) (the Judgment).1

[2]    In the Judgment, I noted the Director’s position that he should be awarded costs on a 2B basis with a 50 per cent uplift.2 I made timetable directions for the Director to file a memorandum on costs if he wished to continue with his costs application.3 Counsel for the Director has filed a memorandum accordingly seeking increased costs against both MAP and Mr Chandra.

[3]    Mr Chandra opposes the Director’s application. Additionally, Mr Chandra now seeks costs on a 2B basis with an 80 per cent reduction. MAP (which has since been placed in liquidation) says that it will abide the Court’s decision.

[4]    The liquidators of MAP consent to the court determining the Director’s application for increased costs against MAP and they abide the court’s decision.

Background

Factual background

[5]    The factual background to the proceeding is set out at [27]–[37] of the Judgment. The facts can be briefly summarised as follows:

(a)On 15 June 2023, the Director granted MAP a goods service licence under the Land Transport Act 1988 (the Act).

(b)On 20 September 2023, the Director, through a Senior Compliance Officer, issued a Notice of Audit to MAP under s 198 of the Act. The

1      MAP Transport Ltd v Director of Land Transport [2025] NZHC 753. (Judgment)

2 At [151].

3 At [152].

Notice of Audit required MAP to provide specified information to assist in assessing MAP’s compliance with the Act.

(c)On 8 November 2023, the Director’s Delegate issued a notice of Proposal to revoke MAP’s goods service licence on the basis that he was satisfied that MAP was not a fit and proper person to hold such a licence. On the same date, the Director’s Delegate issued a notice of Proposal to disqualify Mr Chandra from holding a transport service licence (TSL) for a period of five years or being in control of a transport service for a period of five years.

(d)By noticed dated 21 December 2023, the Director’s Delegate revoked MAP’s good service licence (revocation decision). By separate notice, on the same date, the Director’s Delegate disqualified Mr Chandra from being the holder of a TSL and from being a person in control of a transport service for a period of five years (disqualification decision) (together the Director’s decisions).

Procedural background

[6]    Following the above events, the appellants commenced two proceedings in relation to the Director’s decisions:

(a)First, the appellants sought judicial review of the Director’s decisions.

(b)Second, the appellants filed an appeal against the Director’s decisions on the ground that the Director was wrong to find that the appellants were not fit and proper persons to, respectively, hold a TSL or to be a person in control of a transport service.

[7]    In a judgment dated 12 August 2024, I refused the application for judicial review, finding against the appellants on all grounds raised (JR judgment).4

4      MAP Transport Ltd v The Director of Land Transport [2024] NZHC 2253. (JR judgment).

[8]    In a District Court decision made available to the parties on the same day as the JR judgment, Judge K D Kelly upheld the Director’s decisions and dismissed the appellants’ appeal (District Court decision).5 It was this District Court decision that was the subject of the appeal on questions of law determined in the Judgment.

Outcome of the Judgment

[9]    In the Judgment, I dismissed all 18 grounds in the notice of appeal, largely on the basis that these grounds raised issues that were either:

(a)questions of law that had already been determined in the JR judgment, and therefore barred by issue estoppel; or

(b)not questions of law, and therefore outside the Court’s jurisdiction on appeal.

[10]   Not without some hesitation, I accepted an oral submission (not alleged as an error of law in the notice of appeal nor referred to in the appellants’ written submissions) that the Judge erred in not considering the length of Mr Chandra’s disqualification. I sent the matter back to the District Court Judge to consider this issue (not the disqualification per se, but its length).6

Submissions

Respondent’s submissions

[11]   Mr Papps, counsel for the Director, submits that the Court should award the Director 2B scale costs of $10,516 with a 50 per cent uplift, resulting in a total of

$15,774. In support, Mr Papp says that the appellants’ appeal was unmeritorious because:

5      MAP Transport Ltd v The Director of Land Transport [2024] NZDC 17714. (District Court decision).

6      Judgment at [137]–[148].

(a)to the extent that the appeal raised questions of law that the Court had jurisdiction to determine, MAP and Mr Chandra were precluded by issue estoppel from advancing those questions of law; and

(b)to the extent that the appeal raised issues that were not questions of law, the Court did not have jurisdiction to determine those issues (except to the extent that the District Court had made a factual finding unsupported by any evidence, or an omission to draw an inference of fact which was the only one reasonably possible on the evidence).

[12]   Mr Papps further explains that on 29 August 2024, shortly after the appellants filed their appeal, counsel for the Director emailed counsel for the appellants and invited them to limit their appeal to questions of law that were not barred by issue estoppel.

[13]   A reply email was received on 18 September 2024. Counsel for the appellants accepted that the appeal could only proceed on questions of law, but rejected the suggestion that my findings in the JR judgment precluded them from raising similar arguments in the appeal.

[14]   Mr Papps submits that this decision by the appellants not to accept the invitation made on behalf of the Director amounted to a failure, without reasonable justification, to accept a legal argument7 and/or an offer to settle or dispose of the appeal.8

[15]   Mr Papps notes that MAP and Mr Chandra did not address the Director’s position on issue estoppel at all in their written submissions and addressed it only briefly in their oral submissions. Mr Papps submits that despite the appellants’ limited challenge to the Director’s position and their failure to identify any grounds of appeal that raised questions of law that had not already been determined in the JR judgment, the Director was still required to incur the cost of preparing for and attending a one- day hearing of the appeal.

7      High Court Rules 2016, r 14.6(3)(b)(iii).

8      Rule 14.6(3)(b)(v).

Appellants’ submissions

[16]   Mr Khan, counsel for the appellants, submits that  the Court should award  Mr Chandra 2B scale costs of $13,384 with an 80 per cent reduction, resulting in a total of $2,676.80.

[17]   Mr Khan submits that the issue of costs in this case should not be complicated by degrees of success. He says that the basic principle is that the loser pays costs and that because Mr Chandra’s appeal was partially allowed, he cannot be considered the loser. Mr Khan accepts that Mr Chandra was unsuccessful on other appeal points but submits that a reduction of 80 per cent appropriately addresses this failure.

[18]   In response to the application for increased costs, Mr Khan submits that most of the grounds of appeal advanced in the proceeding pertained to the revocation decision that concerned MAP rather than the disqualification decision concerning  Mr Chandra. This, Mr Khan says, meant that the parties focussed on issues concerning MAP and that Mr Chandra should not be liable for MAP’s costs.

[19]   Additionally, regarding issue estoppel, Mr  Khan  accepts  that  MAP  and  Mr Chandra were unsuccessful. However, Mr Khan submits that Mr Chandra’s points were arguable, and that Mr Chandra’s lack of success does not make his conduct unreasonable.

Respondent’s submissions – in opposition to Mr Chandra’s application

[20]   The Director opposes Mr Chandra’s application for costs. Mr Papps submits that the fact that the court sent the matter back to the District Court to consider the length of Mr Chandra’s disqualification should not weigh in Mr Chandra’s favour when assessing costs because:

(a)Mr Chandra did not raise this issue in his notice of appeal or in his written submissions. It was raised orally at the hearing.9

9 Judgment, above n 1, at [137].

(b)The Court’s finding in relation to the length of disqualification was only reached with some hesitation.10

(c)Mr Chandra has not enjoyed any substantive success as a result of the length of the disqualification being sent back to the District Court.   Mr Chandra has since filed a Notice of Discontinuance in the District Court.

(d)Mr Chandra did not incur any material cost in pursuing the length of disqualification issue. The steps for which costs are claimed included ‘Commencement of Appeal’ and ‘Preparation of written submissions.’ But this issue was not raised in either of those documents.

Law

[21]   Costs awards are at the discretion of the Court.11 This discretion is to be guided by the rules and principles set out in part 14 of the High Court Rules 2016 (HCR). As a general principle, the party who fails with respect to a proceeding should pay costs to the successful party.12 Ultimately, though, the overall objective is that any costs award ought to do justice between the parties.13

Who was the successful party overall?

[22]   I consider the Director was the successful party overall. He succeeded in his opposition to all 18 grounds of appeal in the Notice of Appeal and as addressed in the appellants’ written submissions.

[23]   The narrow issue on which Mr Chandra “succeeded”, namely the length of his disqualification (not disqualification per se) was not one of the grounds in his Notice of Appeal nor was it addressed in written submissions.

10 At [147].

11     Rule 14.1 of the High Court Rules 2016.

12     Rule 14.2(1)(a).

13     Kinney v Pardington [2021] NZCA 174 at [1].

[24]   It was unclear whether the length of disqualification was in fact raised in the District Court. The point was not addressed in the written submissions in that court, nor in Mr Chandra’s affidavit in that court. All indications were that the issue before the District Court Judge was binary: to disqualify or not.14

[25]   However, given that the Notice of Appeal filed in the District Court did clearly raise the length of the disqualification and given there was no record of that point being abandoned, not without some hesitation, I concluded the Judge erred in not considering the length of Mr Chandra’s disqualification.15

[26]   For all the above reasons I consider the Director was the successful party overall. The Director is entitled to scale costs.

[27]   As a separate issue and as Mr Papps points out, Mr Chandra cannot claim for costs as he endeavours to do for the steps of commencing the appeal and preparation of written submissions as the point on which Mr Chandra “succeeded” was not raised in either of those documents. The issue occupied only a very small part of the oral submissions of counsel for Mr Chandra.

[28]   I disallow Mr Chandra’s application for costs, even at the reduced level proposed.

Increased costs

[29]   I now turn to consider whether there should be a 50 per cent uplift on scale costs.

[30]   The email of 29 August 2024 from counsel for the Director to counsel for MAP and Mr Chandra contains the following:

The High Court therefore has no jurisdiction to hear and determine the appeal by MAP Transport and Mr Chandra against Judge Kelly’s decision, except to that extent that the appeal is on a question of law. At a minimum, MAP Transport and Mr Chandra will need to amend their notice of appeal to limit any grounds of appeal to questions of law only.

14     Judgment, above n 1, at [142]–[145].

15     At [146]–[147].

But even in respect of any questions of law for which an appeal might otherwise be available, [the JR judgment] poses another hurdle for MAP Transport and Mr Chandra. Subject to any successful appeal (and none has been brought), the principle of estoppel per rem judicatum means that the parties to [the JR] judgment are now estopped from disputing or questioning [Gordon J’s] decision on the merits in any subsequent litigation. In addition, and again subject to any successful appeal (and none has brought), issue estoppel means that each party to [the JR] judgment is now precluded from contending the contrary of any precise point (here, of law) that has been determined against that party. In other words, it is no longer open to MAP Transport and Mr Chandra to relitigate, on appeal from Judge Kelly’s judgment, any question of law that [the JR judgment] determined.

It is not apparent to us that any of the grounds of appeal in MAP Transport and Mr Chandra’s notice of appeal involve questions of law that [the JR judgment] has not already determined.

[31]   In response, by email dated 18  September  2024,  counsel  for  MAP  and  Mr Chandra acknowledged that the appellants could only advance grounds of appeal based on questions of law and that they would need to amend the Notice of Appeal to address that issue. But the email went on to say that:

We do not accept your second point that the principle of estoppel per rem judicatum prohibits our client from bringing such an appeal because of [the JR] judgment.

[32]   MAP and Mr Chandra did not respond to the invitation from counsel for the Director to limit their appeal to questions of law that were not barred by issue estoppel. It was asserted in the 18 September 2024 email that:

Section [111A] of the Land Transport Act gives our client a right of appeal. It is exercising that right.

[33]   However, as Mr Papps points out, the Director did not suggest that there was no right of appeal, only that any appeal must be limited to questions of law that were not barred by issue estoppel.

[34]The response in the 18 September 2024 email, also includes the following:

… We accept that [the JR judgment] decision is binding on the parties with respect to the procedural integrity of NZTA’s decision.

The appeal, however, is not concerned with NZTA’s decision making process. Rather, the appeal will determine whether MAP Transport and Mr Chandra are fit and proper persons under the Act. The appeal is focused on the integrity

of the appellants, rather than NZTA. Our clients have a right of appeal with respect to this substantive issue. This issue has not been finally determined.

[35]   However, the appeal was not for the purposes of determining whether the appellants were fit and proper persons for the purpose of the Act. The response demonstrates a misunderstanding of both issue estoppel and the High Court’s jurisdiction on appeal on questions of law.

[36]   The appellants did file an amended Notice of Appeal. However, it included most of the 16 grounds in the original Notice of Appeal, but with the words “erred in fact” replaced with phrases such as “committed a procedural error”.16 None of the “procedural errors” were established.

[37]   MAP and Mr Chandra did not address the Director’s position on issue estoppel in their written submissions and only responded in oral submissions.

[38]   I do not accept Mr Khan’s submission that the points raised by the appellants were arguable. The decision by the appellants to proceed with the appeal contributed unnecessarily to the time or expense of the proceedings by failing, without reasonable justification, to accept a legal argument.17 I also consider that r 14.6(3)(v) applies in that the appellants failed, without reasonable justification, to accept an offer to dispose of the appeal.

[39]   The appropriate level of increased costs is an uplift of 50 per cent on scale costs.18

Result

[40]   I order MAP Transport Limited and Adwin Chandra to pay increased costs to the respondent, The Director of Land Transport, in the sum of $15,774 (being an uplift of 50 per cent on sale costs of $10,516, calculated on a Category 2B basis).

16 MAP Transport Ltd v Director of Land Transport, above n 1, at [40].

17 High Court Rules, r 14.6(3)(b)(iii).

18 In Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434 at [58], the Court of Appeal stated, “In our assessment, an uplift set at 50 per cent of standard costs appropriately reflects the fact that the application was always unlikely to succeed.”

[41]The application by Mr Chandra for costs is refused.

Gordon J