Mitchell v Mitchell

[2018] NZHC 939

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CIV-2017-463-61

[2018] NZHC 939

BETWEEN

HAMUERA WALKER MITCHELL, HOKIMATE KAHUKIWA, PETER STAITE AND VERONICA BUTTERWORTH

Applicants

AND

TE KIRI WHERO EWA MAKARETA MITCHELL

First Respondent

MALCOLM TUKUNO SHORT AND ALEXANDER JAMES WILSON

Second Respondents

cont … /2

Hearing:

On the papers

Appearances:

J P Kahukiwa and P M Hoskins for the Applicants

E J Rushbrook and C M Marks for the First, Second, Third and Seventh Respondents

Judgment:

3 May 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 3 May 2018 at 4.30pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors/Counsel::

Corban Revell, Auckland

Russell McVeagh, Wellington Meredith Connell, Wellington

MITCHELL v MITCHELL [2018] NZHC 939 [3 May 2018]

/2

WARWICK MOREHU, RIMINI DENIS PAUL, KATARINA KEREAMA, DONNA HALL

Third Respondents

TE KOTAHITANGA O NGATI WHAKAUE ASSETS TRUST

Fourth Respondents

TE MINITA WHANAKETANGA MAORI and THE ASSOCIATE MINISTER OF TOURISM

Fifth Respondents

THE NEW ZEALAND ARTS & CRAFTS INSTITUTE
Sixth Respondent

BRYCE MURRAY
Seventh Respondent

Judgment

[1]                   On 25 July 2017, Heath J heard an application for an interim injunction and on 28 July 2017 he issued judgment dismissing it.1 The injunction would have prevented execution of an agreement between the Crown, the Māori Arts and Crafts Institute and the trustees of two trusts. Heath J decided the plaintiffs had no seriously arguable case and there was no basis for an interim injunction.2 He reserved the question of costs.3

Submissions on costs

[2]                   The first, second, third and seventh respondents seek costs and disbursements totalling $26,983.50 on a 2C basis due to the urgency, extent of material and complexity of the application and statement of claim.

1      Mitchell v Mitchell [2017] NZHC 1759.

2 At [61].

3 At [64].

[3]                   Counsel for the applicants submit the merits of the substantive claim have yet to be determined. They seek: costs of the interim injunction application be further reserved; or otherwise an order the parties should bear their own costs; or otherwise an order against the plaintiffs of reduced costs; or otherwise costs no higher than on a 2B basis. The applicants point to concessions by the respondents they say would have meant there was no need for an application for an interim injunction if made before the application.

[4]                   On the day of the hearing, the applicants filed a notice of discontinuance against the fourth respondents on the basis of an undertaking. After the judgment, on 13 October 2017, the applicants discontinued the proceeding against the fifth and sixth respondents, with costs between them lying where they fell.

Decisions on costs

[5]                   Rule 14.8 of the High Court Rules 2016 provides costs on an opposed interlocutory application must be fixed with the application is determined “unless there are special reasons to the contrary”. I do not consider there are special reasons to the contrary here. The merits of the substantive claim do not need to be determined to decide the costs of the application.

[6]                   It is a fundamental principle that a losing party pays a winning party a contribution towards their legal costs.4 Determining who has won and who has lost is guided by the interests of justice and must focus on “who in reality has been the successful party”.5

[7]                   It is possible an application for an interim injunction might fail where the applicant is, in reality, the successful party: if the applicant obtains an undertaking that achieves the same result as they sought. That is effectively what the applicants submit happened here. Mr Kahukiwa submits that, at the hearing, the respondents conceded the “initial period”, under a deed that was part of the relevant agreement, was still in

4      Rule 14.2(a) of the High Court Rules and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

5      Waihi Mines Ltd v AUAG Resources Ltd (1999) 13 PRNZ 372 (CA) at [5]. See also Packing in Ltd (in liq) formerly known as Bond Cargo Ltd v Chilcott (2003) 16 PRNZ 869 (CA) at [6] (calling for “a realistic appraisal of the end result”).

force and it was unlikely any relevant bill would be introduced prior to the 23 September 2017 General Election. He says the applicants would not have brought the proceedings if the respondents had made those concessions earlier.

[8]                   Mr Kahukiwa is correct Heath J considered the assurance by counsel for the trustees and the Ministers that the “initial period” was still in force was relevant. The judgment stated “[t]hose assurances assuage any concern that the Vesting Agreement has pre-determined beneficial ownership by reference to the Panel’s decision”.6 That was described as the applicants’ “primary concern”.7 And he took it into account in considering the question of where the interests of justice lay.8

[9]                   But Heath J also determined “lack of authority is the only basis on which an interim injunction could be issued to prevent the Trustees from signing the Vesting Agreement” and there was no such lack of authority.9 Accordingly, he found there was no basis on which the interim injunction could be issued.10 The Crown’s advice introduction of a bill was “unlikely” before the election (which is not presented in the judgment as a concession) was related to one of the compelling reasons why no relief should be granted on the balance of convenience.11 But the application would have failed anyway. The retrospective suggestion the application would have not otherwise been brought does not affect the consequences of that. The application was brought. It failed. And given Heath J’s conclusion on the lack of authority issues, it could not have succeeded. In these circumstances, the respondents are entitled to costs.

[10]               I agree costs should be awarded on a category 2 basis. They are proceedings of average complexity requiring counsel of skill and experience considered average in the High Court, according to r 14.3. Under r 14.5, a reasonable time for a step in the proceedings should be determined by reference to band B, if a normal amount of time is considered reasonable and band C if a comparatively large amount of time for the particular step is considered reasonable. For example, band B allows one and a half days for preparing written submission for an interlocutory application and band C

6 At [17].

7 At [17].

8 At [63].

9      At [18]–[19].

10 At [61].

11     At [62](b).

allows 3 days. I have reviewed the file. I consider a normal amount of time for each step would have been reasonable for the application so band B is applicable. However, because there was a considerable number of evidential issues to traverse, I do allow for second counsel.

Result

[11]               I award costs and disbursements to the first, second, third and seventh respondents on a category 2 basis, under band B for each step. I certify for second counsel.

………………………….

Palmer J