MT ALGIDUS LIMITED AND THE COMMISSIONER OF CROWN LANDS ATTORNEY-GENERAL

[2024] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-773

[2024] NZHC 2639

IN THE MATTER

of an application for declarations under the Declaratory Judgments Act 1908

AND IN THE MATTER

of the application of s 24 of the Conservation Act 1987 to Crown pastoral lease: Mt Algidus Station

BETWEEN

MT ALGIDUS LIMITED

Plaintiff

AND

THE COMMISSIONER OF CROWN LANDS

First Defendant

ATTORNEY-GENERAL

Second Defendant

Appearances:

J B M Smith KC and E J Watt for Plaintiff

H W Ebersohn, K M Anderson and D Ranchhod for First and Second Defendants

Judgment:

12 September 2024

JUDGMENT OF BOLDT J (application to recall costs decision)

This judgment was delivered by me on 12 September 2024 at 1pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

AWS Legal, Invercargill for Plaintiff

Te Tari Ture o te Karauna | Crown Law Office, Wellington for First and Second Defendants

MT ALGIDUS LIMITED v THE COMMISSIONER OF CROWN LANDS [2024] NZHC 2639 [12 September 2024]

Introduction

[1]    At the conclusion of my 2 August 2024 judgment dismissing Mt Algidus’ application for declarations, I recorded that the parties agreed the case was appropriately categorised as a 2B proceeding for costs purposes. I determined that the Commissioner, having been successful, was entitled to an award on that basis.1

[2]    Mt Algidus has lodged an appeal against my 2 August decision. It has also asked me to reconsider the question of costs. Mr Smith KC, on behalf of Mt Algidus, says he expected costs would be reserved rather than determined, and that Mt Algidus wishes to submit that costs should lie where they fall. He submits the proceeding was a matter of public interest,2 and the Commissioner’s own conduct made it necessary for Mt Algidus to bring the proceeding.3

[3]    The Commissioner submits costs have already been awarded, and seeks confirmation Mt Algidus is liable for scale costs and disbursements totalling

$17,781.65.

[4]    The Commissioner is right to note that costs have already been awarded. Both parties sought costs during the substantive hearing, both indicated they considered 2B the appropriate band, and neither suggested further argument might be required. It follows that neither party indicated there might be any ground to displace the normal principle that the party who fails in a proceeding should pay costs to the party who succeeds.4

[5]    While Mt Algidus sought costs on its own behalf if its application was successful, it appears it expected an opportunity to explain why it should not contribute to the Commissioner’s costs if its application failed. I have treated its memorandum as an application to recall my costs decision. If persuaded costs should not have been

1      Mt Algidus Ltd v Commissioner of Crown Lands [2024] NZHC 2154 at [48].

2      High Court Rules 2016, r 14.7(e)

3      In advancing this ground, Mt Algidus relies on the catch-all ground in r 14.7(g), which allows a refusal or reduction in costs if “some other reason exists” for doing so.

4      Rule 14.2(1)(a).

awarded, I would have treated the misunderstanding about the opportunity to make further submissions as a procedural irregularity justifying recall.5 That said, I do not consider Mt Algidus has identified a basis to displace the usual presumption that costs will follow the event.

Discussion

[6]    I agree with Mr Ebersohn  that  this  is  not  a  public  interest  proceeding.  Mt Algidus did not seek declarations for the benefit the wider public, but to exclude the Department of Conservation from a  role in  managing the marginal  strips on   Mt Algidus station. As Mr Ebersohn notes, even if Mt Algidus had succeeded, the strips would still have been managed by the Crown.

[7]    I agree with Mr Ebersohn that this is not the kind of case to which r 14.7(e) is ordinarily applied. Although the issue was one of statutory interpretation, Mt Algidus brought the proceedings to help advance its own plans for the areas adjacent to the station’s rivers and streams. This case is very different, for example, from New Health New Zealand Inc v South Taranaki District Council and New Zealand Health Professionals Alliance Inc v Attorney General,6 where costs were either not awarded or slightly reduced under r 14.7(e). In both cases the proceedings involved issues of wider public concern (fluoridation of drinking water and abortion), and were brought by plaintiffs with no direct stake in the outcome.

[8]    Similarly, I am  unpersuaded  the  actions  of  the  Commissioner  prior  to  Mt Algidus issuing its proceedings disentitle it to an award. It is true the Commissioner was unable to provide a prompt response when Mt Algidus first raised its interpretation of s 58 of the Land Act 1948. In addition, the Crown initially indicated an intention to seek declarations then refrained from doing so, and the Crown did not raise its reliance on s 24(3) (as opposed to s 24(1)) of the Conservation Act

5      Rule 11.9; and Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 approved in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

6      New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993; and New Zealand Health Professionals Alliance Inc v Attorney General [2021] NZHC 3322.

1987 until it filed its statement of defence. It appears the Crown was, for a time, nonplussed by the novel argument Mt Algidus sought to pursue.

[9]    That said, Mr Smith has not directed me to any provision or authority which makes a slow pre-litigation response relevant to an award of costs. The tenor of rr 14.6 and 14.7 is that the parties’ conduct during the proceeding is highly relevant, but the rules give no hint the Court’s inquiry should encompass an examination of a party’s pre-litigation conduct.

[10]   Refusal of an award on the basis of a slow or vague response to pre-litigation correspondence would create an entirely new ground for refusal or reduction under   r 14.7(g). As the Court of Appeal observed in Roberts v Professional Conduct Committee of the Nursing Council of New Zealand, “the number of such exempt categories should be kept limited, having regard to the policy of the costs regime and the emphasis it places on costs following the event.”7 In rejecting a submission that an award should be reduced because of “heinous” pre-litigation conduct by the successful party, albeit in that case the course of the abuse that was subject of the proceedings, Edwards J observed:8

… refusing to award costs would undermine the integrity of the costs regime. That regime is built on the principle that costs should be predictable and expeditious. The courts have cautioned against a broad interpretation of the exception in r 14.7(g) lest the exception swallow the rule. Reducing or refusing costs due to the nature of the conduct that formed the basis of the claim would introduce a new category of exemption from the general rule that would risk doing just that.

[11]   Given my substantive decision is, in any event, under appeal, there will be no obstacle to Mt Algidus challenging the award in the Court of Appeal.

Result

[12]   I decline to recall my costs decision. I confirm Mt Algidus is to pay costs on a 2B basis, although before confirming the schedule the Commissioner appended, I

7      Roberts v Professional Conduct Committee [2014] NZCA 141, (2014) 21 PRNZ 753 at [24].

8      Taylor v Roper [2019] NZHC 16 at [21].

invite Mr Ebersohn to consider whether, given the hearing concluded before the afternoon adjournment, the allocation of a full day for his appearance is correct.9

Boldt J

9      Row 34 of sch 3 to the High Court Rules provides that appearance time is to be measured in quarter days.