Neill v Auckland Council - [2017] NZHC 2703

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1802 [2017] NZHC 2703

IN THE MATTER
of an application for judicial review under

the Judicial Review Procedure Act 2016

BETWEEN

MICHAEL ACTON FYANS NEILL First Applicant

DAVID NOEL TUNNICLIFFE Second Applicant

CB TRUSTEES 2012 LIMITED Third Applicant

ROY MELVYN SIMPSON Fourth Applicant

AND

AUCKLAND COUNCIL First Respondent

PPI LIMITED Second Respondent

Hearing: On the papers

Counsel:

D Sadlier for applicants
RE Bartlett QC for second respondent

Judgment:

6 November 2017

JUDGMENT OF FITZGERALD J [As to costs]

This judgment was delivered by me on 6 November 2017 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Neill v Auckland Council [2017] NZHC 2703 [6 November 2017]

Introduction

[1] The applicants commenced proceedings to judicially review a decision made by the first respondent, Auckland Council, but then discontinued those proceedings a short time later. The second respondent (the subject of Auckland Council’s decision) now seeks costs.1

Background

[2] In a statement of claim dated 1 August 2017, the applicants challenged Auckland Council’s decision to cancel a resource-consent condition that had limited vehicle access to the second respondent’s property from a second frontage. The applicants pleaded four causes of action in the statement of claim.

[3] On 11 September 2017, the applicants filed a notice of discontinuance. This occurred before the first case management conference. At this point, the second respondent had completed no formal steps in the proceedings, in terms of the time allocations in schedule 3 to the High Court Rules 2016.

[4] The second respondent now seeks costs and disbursements. It seeks increased costs in relation to an “estimated” four hours of legal advice, for which the Court is requested to fix an appropriate cost sum.2 The second respondent also claims a $2,639.25 disbursement, being fees paid to a planning consultant for work carried out in July 2017.

[5] The applicants say costs should lie where they fall. They say that the legal costs and disbursement sought were incurred prior to the proceedings being commenced, and accordingly fall outside the discretion of the court to award costs. The applicants further say that costs lying where they fall is an appropriate outcome in any event, given the discontinuance is not evidence that the proceedings were unmeritorious; rather, neither party has succeeded on the merits of their case.
Further, the applicants say that “in the face of a highly adversarial approach by the

1 The applicants and Auckland Council have resolved the question of costs as between those parties.
2 No invoices in relation to this time have been provided, or details as to what this time related.

second respondent”, they decided to discontinue the proceeding, taking that step as

early as possible to reduce costs incurred by all parties.

Discussion

[6] Under r 15.23 of the High Court Rules, a plaintiff who discontinues a proceeding must, unless the defendant otherwise agrees or the court otherwise…

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.

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Details

Case: [2017] NZHC 2703
Decision Date: 6 November 2017

CaseChat Overview and Summary

The applicants in Neill v Auckland Council initiated judicial review proceedings against the Auckland Council, challenging the decision to cancel a resource-consent condition that limited vehicle access to the second respondent’s property. However, the applicants subsequently discontinued the proceedings before any formal steps were taken by the second respondent. The second respondent now seeks costs and disbursements related to the proceedings. The applicants argue that costs should lie where they fall, as the proceedings were discontinued early and neither party succeeded on the merits. The applicants also contend that the costs and disbursements were incurred prior to the commencement of the proceedings and thus fall outside the court’s discretion to award costs.

The court considered the relevant rule under the High Court Rules, which presumes that a discontinuing plaintiff must pay the defendant’s costs unless it is just and equitable not to do so. The court noted that the presumption is not easily displaced and that it was not appropriate to assess the merits of the claim at such an early stage. The applicants had not provided sufficient grounds to displace the presumption, such as an exceptionally adversarial approach by the second respondent. The court concluded that the applicants should pay the second respondent’s costs, but only for those incurred after the proceedings were formally commenced. The court awarded one-third of the scale costs for preparing a statement of defence, amounting to $1,487. The court declined to award the additional disbursement or increased costs, finding insufficient evidence to support such an award.

In summary, the court ordered the applicants to pay the second respondent $1,487 in costs, but did not award the requested disbursement or increased costs. The decision underscores the importance of the timing of costs incurred in relation to judicial review proceedings and the limited circumstances under which the presumption of cost liability can be displaced.

Orders