Minotaur Custodians Limited v Wellington City Council

[2017] NZHC 2970

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV 2015-485-196 [2017] NZHC 2970

IN THE MATTER OF

an application for review under the

Judicature Amendment Act 1972

BETWEEN

MINOTAUR CUSTODIANS LIMITED Plaintiff

AND

WELLINGTON CITY COUNCIL Defendant

On the papers
Judgment:	1 December 2017

JUDGMENT OF MALLON J (COSTS)

[1]      In this judicial review proceeding the plaintiff (Minotaur) succeeded in the High Court.1   In that judgment I indicated costs should follow the event.  The parties accepted that indication and agreed the defendant (the Council) would pay Minotaur costs on a 2B basis. In accordance with that agreement, $32,371 (costs of $30,551 and disbursements of $1,820) was paid by the Council to Minotaur.

[2]      The Council appealed the substantive judgment and succeeded in the Court of

Appeal.2   The Court of Appeal awarded costs in the Council’s favour.  It directed that

1      Minotaur Custodians Ltd v Wellington City Council [2016] NZHC 238, [2016] 3 NZLR 92.

2      Wellington City Council v Minotaur Custodians Ltd [2017] NZCA 302, [2017] 3 NZR 464.

MINOTAUR CUSTODIANS LIMITED v WELLINGTON CITY COUNCIL [2017] NZHC 2970 [1 December

2017]

the costs award in the High Court be set aside and that costs be dealt with in this Court in light of the Court of Appeal’s judgment.

[3]      The parties have been unable to reach agreement on costs in this Court.  The Council submits costs should follow the event.  As the Council was the ultimately successful party, Minotaur should repay the costs it received following the High Court judgment and pay costs to the Council.   The Council has claimed $22,762 costs (calculated on a 2B basis for specified items in sch 3 of the High Court Rules 2016) and $110 disbursements.

[4]      Minotaur submits costs should lie where they fall.  It submits:

5.        Before this Court the Plaintiff was granted relief.

6.This came about because the Court drew an inference that in the absence of any evidence from those involved in preparing the consultation plan and in the absence of any explanation or apparent rationale, the Defendant had by oversight failed to consult with the likes of the Plaintiff.

7.That remained the position in the Court of Appeal (no further evidence was adduced).   The Court of Appeal separated company with this Court primarily because it was less ready to draw the same inference and felt able to draw its own inference upon which a rational basis for not consulting with the likes of the Plaintiff could be rested.  In this sense it could be said that the Defendant ultimately prevailed.

8.However, it is submitted, this was fortuitous for the Defendant.  The position remained that evidence had not been adduced by the Defendant from those involved in preparing the consultation plan. The Defendant maintained that it did not have to consult with the likes of the Plaintiff and it was the Court which provided an explanation or apparent rationale for not doing so, rather than the Defendant. In this sense the costs the Defendant incurred in defending the proceedings were not particularly reflected in the outcome.

9.The Plaintiff had in the meantime incurred costs advancing a case based on the absence of any evidence from those involved in preparing the consultation plan and any explanation or apparent rationale by the Defendant for not consulting specifically with the likes of the Plaintiff, as distinct from the public in general.  While brought primarily for the Plaintiff’s own benefit, the proceedings also had a public interest element, focusing as they did on aspects of the Defendant’s decision-making processes.

10.In all these circumstances, it is submitted, this is a case where in respect of costs the just outcome is that they should lie where they fall.

[5]      I am not persuaded that this provides a sufficient basis for departing from the general principle that costs follow the event.   The fact remains that the Council succeeded in defending the judicial review.  Although Minotaur regards the outcome as fortuitous, this does not fall within any of the grounds set out in r 14.7 of the High Court Rules 2016 for refusing or reducing the costs otherwise payable.  For example, I do not regard this as a case where the Council has “contributed unnecessarily to the time or expense of the proceeding”.3   Nor do I consider that the case had a sufficient public interest element to justify refusing or reducing the costs otherwise payable.4

[6]      As to quantum, Minotaur takes issue with two items for which the Council has claimed.  The first relates to step 11 (filing a memorandum of counsel for the first mentions’ hearing). Minotaur points out that, although this was a joint memorandum, it was prepared by and filed by Minotaur.  I have reviewed the memorandum.  It was straightforward and should not have taken more than a few minutes for the Council’s counsel to review.  I accept the claim for this step is not appropriate.  This means the claim for $796 is not allowed.

[7]      The second relates to the Council’s claim for step 32 (defendant’s preparation of list of issues, authorities and common bundle).  The Council did not prepare a list of issues or a common bundle, but did prepare a bundle of authorities.  The category B allocation for step 32 is two days.  The Council has claimed one day.  Minotaur submits this reduced claim remains inappropriate because the Council has also claimed three days for step 33 (preparation for hearing) which provides ample allowance for preparation for the judicial review hearing including assembling the authorities relied upon.

[8]      I accept that one day for assembling the Council’s authorities represents more than a reasonable contribution to the likely time this step involved especially in light of the three day allocation for step 33.  I allow 0.6 of a day for step 32, being close to one-third of the two day allocation in sch 3.  I have settled on one-third because step

32 allows for preparation of three things and the Council has undertaken only one of

them.  Costs are intended to be predicable and allowing approximately one-third of

3      Rule 14.7(f).

4      Rule 14.7(e).

the allowance is consistent with this.  This means the claim for step 32 reduces from

$2,230 to $1,338.

[9]      Pursuant to the outcome in the Court of Appeal, Minotaur is required to repay

$32,371 to the Council.  It is also required to pay costs of $20,774 to the Council and disbursements of $110.  I make orders accordingly.

Mallon J