Marborough District Council v Evans - [2024] NZHC 475

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2023-406-10

[2024] NZHC 475

UNDER the Biosecurity Act 1993

IN THE MATTER

of an application under section 76 of the Act

BETWEEN

MARLBOROUGH DISTRICT COUNCIL

Appellant

AND

G I T EVANS

Respondent

Hearing: On the Papers

Counsel:

P A C Maw and M A Mehlhopt for Appellant

Q A M Davies and J S Marshall for Respondent

Judgment:

7 March 2024

JUDGMENT OF McQUEEN J

[Costs]

[1] The Marlborough District Council (the Council) appealed against an interim decision of the Environment Court dated 17 March 2023 regarding an application by Mr Evans under s 76 of the Biosecurity Act 1993 (the BSA). In a judgment dated 21 December 2023 (the substantive judgment), I dismissed the Council’s appeal and Mr Evan’s cross-appeal.1

[2] In the substantive judgment, I recorded that Mr Evans is entitled to costs in this Court and that if counsel were unable to agree costs, memoranda should be filed, and

1 Marlborough District Council v Evans [2023] NZHC 3849 at [179].

MARLBOROUGH DISTRICT COUNCIL v EVANS [2024] NZHC 475 [7 March 2024]

I would decide costs on the papers.2 Agreement was not reached, memoranda have been filed and I am required to determine costs.

Parties’ positions

[3] Mr Evans seeks costs on a 2B basis and an allowance for second counsel. Counsel for Mr Evans, Mr Davies and Mr Marshall, submit that this is justified as the appeal was novel as the first appeal of its type under the BSA, both parties had second counsel at the hearing, and the case required examination of the statutory text at a reasonably detailed level.

[4] Mr Evans also seeks an uplift of costs of 20 per cent. Mr Davies and Mr Marshall rely on the approach in relation to the uplift of costs set out by the Court of Appeal in Holdfast NZ Ltd v Selleys Pty Ltd.3 They submit that the Council made an argument that directly contradicted the position it took before the Environment Court.4 They contend that the Council’s approach was unreasonable and unnecessarily increased costs of the litigation.

[5] The Council agrees that costs should be determined on a 2B basis and accepts an allowance for second counsel. It disagrees with one item included in the costs claimed by Mr Evans, and the disbursement claimed. The Council also opposes any uplift of costs.

Discussion

[6] I accept the parties’ agreed position that costs on a 2B basis is appropriate, together with an allowance for second counsel.

Contested item and disbursement

[7] The Council contests two minor points in the claim for costs and disbursements made by Mr Evans. These can be readily dealt with.

2 At [181].
3 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA).
4 See Browne v Afele [2003] 3 NZLR 433 (CA); and Ihaka Te Rou v Love (1891) 10 NZLR 529 (CA).

[8] The first relates to Mr…

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.

Keep reading for free

Create a free CaseChat account to read Marborough District Council v Evans and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 475
Decision Date: 7 March 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Blenheim Registry, the Marlborough District Council appealed against an interim decision of the Environment Court regarding an application by Mr Evans under section 76 of the Biosecurity Act 1993. The legal issues before the Court included whether the Environment Court had jurisdiction on an application under section 76 of the BSA on a point of law only, whether the Environment Court acted outside its jurisdiction, and whether the Marlborough District Council was an "exacerbator" under the National Policy Direction for Pest Management 2015. The Court dismissed the Council's appeal and Mr Evans's cross-appeal, concluding that the Environment Court did not act outside its jurisdiction and that the Council's arguments, although unsuccessful, were not so unreasonable that an order for increased costs was justified.

The Court considered the parties' positions on costs, with Mr Evans seeking costs on a 2B basis and an allowance for second counsel. The Council agreed with the parties' agreed position that costs on a 2B basis is appropriate, together with an allowance for second counsel. However, the Council contested two minor points in the claim for costs and disbursements made by Mr Evans, which were readily dealt with. The Court also considered whether an uplift of costs was appropriate, concluding that the Marlborough District Council had not reached the high threshold of contributing unnecessarily to the time or expense of the proceeding by pursuing arguments that lack merit. Accordingly, the Court awarded costs to Mr Evans in the sum of $13,862, with no disbursements payable.

Orders