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…

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 Mitchell v Mitchell

Details

AGLC: Mitchell v Mitchell [2018] NZHC 939
Case: [2018] NZHC 939
Decision Date: 3 May 2018

CaseChat Overview and Summary

In Mitchell v Mitchell, the applicants, Hauerua Walker Mitchell, Hokima Kahukiwa, Peter Staite, and Veronica Butterworth, sought an interim injunction to prevent the execution of an agreement between the Crown, the Māori Arts and Crafts Institute, and trustees of two trusts. The first respondent was Te Kiri Whero Ewa Makareta Mitchell, while Malcolm Tukuno Short and Alexander James Wilson were the second respondents. The matter was heard on the papers, and the first, second, third, and seventh respondents applied for costs and disbursements totaling $26,983.50 on a 2C basis. The applicants, however, argued that costs should be borne by the parties or reduced to a 2B basis, citing concessions made by the respondents that could have prevented the need for the interim injunction application.

The court considered the submissions and determined that the merits of the substantive claim did not need to be decided to resolve the costs of the application. The court acknowledged the fundamental principle that a losing party should contribute to the winning party's legal costs, guided by the interests of justice. The court found that the respondents were entitled to costs as the applicants' application for an interim injunction failed, and the failure was not due to the lack of authority, as concluded by Heath J. The court awarded costs and disbursements to the first, second, third, and seventh respondents on a category 2 basis, under band B for each step, and certified for second counsel.

Orders