Ng�ti P�hauwera Development Trust - [2022] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2011-485-821

[2022] NZHC 393

UNDER the Marine and Coast Area (Takutai Moana) Act 2011)

IN THE MATTER OF

an application for an order recognising Customary Marine Title and Protected Customary Rights

BY

Ngāti Pāhauwera Development Trust Ngāti Pārau

Ngāi Tahu ō Mōhaka Waikare Maungaharuru-Tangitū Trust (MTT)

On the papers:

Counsel:

R N Smail and E A James for Ngāti Pāhauwera K M Anderson and M J Dicken for MTT

Judgment:

8 March 2022

JUDGMENT OF CHURCHMAN J

(COSTS)

Introduction

[1] On 27 May 2020, I struck out part of an application for recognition orders under the Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) made by the Ngāti Pāhauwera Development Trust (Ngāti Pāhauwera), following an application by the Maungaharuru-Tangitū Trust (MTT). I reserved the issue of costs, inviting the parties to settle it themselves, expressing the preliminary view that this case might be one where costs should lie where they had fallen.

NGĀTI PĀHAUWERA (COSTS) [2022] NZHC 393 (8 March 2022)

[2] On 10 June 2020, MTT applied for costs. That application is opposed by Ngāti Pāhauwera. It is therefore necessary to deal with the costs application. I apologise for the oversight which has resulted in the delay in issuing this decision.

[3] The strike-out application related to a map included within a memorandum filed by Ngāti Pāhauwera on 13 December 2018, labelled “Ngāti Pāhauwera High Court Application Area”. The area detailed in the map was larger than the boundaries detailed in their original application made in 2017.

[4] I concluded that the part of the Ngāti Pāhauwera’s application that comprised the extended application area should be struck out. This amendment effectively was a fresh cause of action that was sufficiently and clearly statute-barred to the point that it could be struck out as an abuse of process under s 107(3)(d) of the Act and r 15.1(1)(d) of the High Court Rules 2016 (HCR).1 The amendment was also struck out on the basis that it was likely to cause undue prejudice and delay under s 107(3)(b) and r 15.1(1)(b).2

Positions of the parties

MTT

[5] MTT submit that reasonable costs should be awarded to MTT as it was the successful party. The Court found that the purported extension of Ngāti Pāhauwera’s application area was an abuse of process. Counsel rely on the High Court Rules, and the fundamental proposition that a Court is to apply the regime in the absence of some reason to the contrary.3 MTT seek to recover a portion of the time and resources committed to the strike out application, and rely on the fact that they did not in their conduct contribute unnecessarily to the time or expense of the overall proceedings. I accept that. Counsel for MTT also submit that none of the reasons for which the Court may refuse to make an order for costs apply to the current proceedings. For the reasons set…

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: [2022] NZHC 393
Decision Date: 8 March 2022

CaseChat Overview and Summary

The case involved an application for an order recognising Customary Marine Title and Protected Customary Rights under the Marine and Coast Area (Takutai Moana) Act 2011 by the Ngāti Pāhauwera Development Trust, which was opposed by the Maungaharuru-Tangitū Trust (MTT). The Ngāti Pāhauwera Trust had filed an extended application area that was larger than the boundaries detailed in their original 2017 application. The Court struck out the extended application area as it was deemed to be an abuse of process and likely to cause undue prejudice and delay. The Court was required to decide the issue of costs following the strike-out application.

The Court considered the relevant law, including the principles governing the exercise of the general discretion given by the High Court Rules 2016, and the balance between the purposes of the Act and the principles governing the award of costs. The Court found that while there was a public interest in moderating any award of costs to have regard to the novelty of the Act and uncertainty about how its provisions would be applied, the same principles that apply to substantive proceedings are not as persuasive in the context of an interlocutory application. The Court concluded that MTT were entitled to some costs in relation to the interlocutory application, but the costs should be discounted by 75 per cent to account for the novelty of the case and public interest aspect.

The Court calculated the appropriate amount of costs on a 2B basis, with the daily recovery rate of $2,390, and ordered Ngāti Pāhauwera to pay $2,619.25 in costs and disbursements to MTT.

The final orders of the Court were that Ngāti Pāhauwera pay $2,619.25 in costs and disbursements to MTT.

Orders