Ngai Te Hapu Incorporated v Bay of Plenty Regional Council

[2018] NZHC 3184

ORDER PROHIBITING PUBLICATION OF THE COSTS FIGURES AT PARAGRAPH [59] OF THE JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV 2018-470-000017

CIV 2018-470-000072

[2018] NZHC 3184

BETWEEN

NGAI TE HAPU INCORPORATED and NGA POTIKI A TAMAPAHORE TRUST

Appellants

AND

BAY OF PLENTY REGIONAL COUNCIL

First Respondent

AND

THE ASTROLABE COMMUNITY TRUST

Second Respondent

Hearing:	On the papers
Appearances:	No appearance for Ngāi Te Hapū Incorporated T Conder for Ngā Potiki a Tamapahore Trust P Cooney for Bay of Plenty Regional Council M Casey QC for Astrolabe Community Trust
Judgment:	5 December 2018

COSTS JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 05 December 2018 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Counsel:

M E Casey QC, Auckland Solicitors:

Holland Beckett, Tauranga

Cooney Lees Morgan, Tauranga Lowndes, Auckland

NGAI TE HAPU INCORPORATED & ANOR v BAY OF PLENTY REGIONAL COUNCIL & ANOR [2018] NZHC 3184 [5 December 2018]

Introduction

[1]    This judgment considers the applications for costs by the Astrolabe Community Trust and the Bay of Plenty Regional Council following my decision on 21 June 2018 to dismiss the remaining appeal, brought by Ngāi Te Hapū Inc, against the decisions of the Environment Court granting resource consents, subject to conditions, for the abandonment of the wreck of the MV Rena on and adjacent to Otāiti / Astrolabe Reef and the discharge of contaminants from the vessel.1

[2]    The Astrolabe Trust and the Regional Council has sought costs against Ngāi Te Hapū Inc and against Ngā Potiki a Tamapahore Trust (Ngā Potiki), which abandoned its appeal on 14 June 2018. The Astrolabe Trust and the Regional Council have settled their claims with Ngā Potiki but maintain their claims against Ngāi Te Hapū Inc which has taken no part in the costs applications.

Relevant background

[3]    The history of these proceedings is set out in my reasons judgment dated     11 July 2018. It is appropriate, nonetheless, to re-state the history briefly.

[4]    On 5 October 2011, the MV Rena, a 235-metre long container vessel, ran aground on Ōtāiti / Astrolabe Reef located approximately seven kilometres from Motiti Island in the Bay of Plenty. Over subsequent months, the vessel broke apart, several hundred tonnes of oil were spilt into the ocean and a significant number of containers were washed off the vessel.

[5]    Extensive efforts were made under notices issued the Maritime Transport Act 1994 (MTA) requiring the vessel and its cargo to be salvaged and removed as a “hazard to navigation” and as a “hazardous ship”.

1      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 043. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 169. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 180. Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 206.

Requirement for resource consents

[6]    The MTA notices were lifted on 31 March 2016 after salvage efforts by the owners and insurers of the vessel and by volunteers had gone as far as was considered prudent having regard to the risks of damage to Ōtāiti and the safety of salvors. At that point, the remnant wreck and any discharges from it became subject to the requirements of the Resource Management Act 1991 (RMA) which provides that no person may dump any ship in the marine coastal area unless expressly authorised by a resource consent and that no person may, in the coastal marine area, discharge a harmful substance or contaminant from a ship into water unless the discharge is permitted or controlled by, among other things, a resource consent.

Resource consent application and decisions

[7]    Even before the lifting of the MTA notices, in May 2014 the Astrolabe Trust applied to the Regional Council for resource consents to abandon the remnants of the wreck in the coastal marine area around Ōtāiti and to permit future discharges of identified contaminants. The Trust was established for the purpose of seeking the consents and being the consent holder in the future with responsibility for implementing the consent conditions.

[8]    The consent application received 150 submissions, with over two-thirds of the submitters opposed to the granting of the consents. The Council referred the application to independent commissioners for decision. After a hearing lasting approximately four weeks, the Commissioners granted the consents subject to extensive conditions.

[9]    Seven submitters, including Ngāi Te Hapū Inc and Ngā Potiki, lodged appeals to the Environment Court. However, following a court-convened mediation in May 2016 and subsequent negotiations, five of the appellants withdrew from the appeal. At the hearing, Ngāi Te Hapū Inc and Nga Potiki, opposed the consents.

[10]   Between 18 May 2017 and 15 December 2017, the Environment Court issued four successive decisions on the application by the Astrolabe Trust for the resource consents necessary to allow the remnants of the wreck of the Rena to remain on and

adjacent to Otāiti / Astrolabe Reef. The principal decision granting the consents was that issued on 18 May 2018. The subsequent decisions were mainly, but not exclusively, concerned with the conditions of the consents.

[11]   A key finding of the Environment Court in its decision of 18 May 2017 was that all that could be done to ameliorate the presence of the wreck had been done and that further works beyond those required by the resource consents would have detrimental effects on Otāiti and would be a safety risk.

Appeals against resource consents and security for costs issues

[12]   By notice dated 30 January 2018, Ngāi Te Hapū Inc and Ngā Potiki lodged appeals against the Environment Court decisions on the ground the decisions were erroneous in law. The notice of appeal identified 15 alleged errors. The appeal was set down for a three-day hearing in the High Court in Tauranga commencing 25 June 2018.

[13]   In a decision dated 11 April 2018,2 Lang J refused an application by the appellants for an order waiving the requirement they provide security for costs of the Astrolabe Trust and the Regional Council on appeal and ordered the appellants jointly provide security in the sum of $9,000 for the costs of the Astrolabe Trust and $6,690 for the costs of the Regional Council. Lang J held that security calculated on a Category 3 basis was appropriate for the Astrolabe Trust and that security calculated on a Category 2 basis was appropriate for the Council. Lang J ordered that if the costs were not paid by 11 May 2018, the Trust and the Council could apply for an order under r 20.13(5) of the High Court Rules dismissing the appeal.

[14]    The appellants did not pay the security by 11 May 2018. Instead, on 10 May 2018, the appellants filed an application for leave to appeal Lang J’s decision ordering they pay security for costs. Also on 10 May 2018, the Astrolabe Trust applied for an order dismissing the appeal to the Environment Court.

2      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 643.

[15]    In a decision dated 22 May 2018, Lang J refused the appellants’ application for leave to appeal his security for costs decision.3 The appellants then filed an application for leave to appeal with the Court of Appeal which heard the application on 11 June 2018. At the hearing, Ngā Potiki advised the Court of Appeal it was no longer seeking leave to appeal the security for costs decision.

[16]   On 14 June 2018, Ngā Potiki filed a notice abandoning its appeal against the Environment Court decisions.

[17]   On 18 June 2018, the Court of Appeal declined the application for leave to appeal the security for costs decision with reasons to follow.4 Those reasons were set out in the Court’s judgment dated 3 August 2018.5

Application to dismiss remaining appeal

[18]   On 20 June 2018, I heard the application by the Astrolabe Trust to dismiss the remaining appeal by Ngāi Te Hapū Inc on the basis that the security for costs ordered by Lang J had not been paid and would not be paid.

[19]   On 21 June 2018, I gave my results judgment dismissing the appeal.6 I summarised my reasons as follows:

(a)Ngāi Te Hapū Inc had failed to provide security for costs as ordered by the High Court on 11 April 2018 and failed to provide any explanation as why no steps were taken to raise the security ordered by the Court; and

(b)There was no realistic prospect of the appeal succeeding because:

(i)All substantive points of appeal related to the initial decision of the Environment Court delivered on 18 May 2017,7 any appeal

3      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 1142.

4      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZCA 202.

5      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZCA 291.

6      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2018] NZHC 1493.

7      Ngāi Te Hapū Inc v Bay of Plenty Regional Council [2017] NZEnvC 073.

against which was well out of time and no application was made for an extension of time;

(ii)There was no merit in the contention that the Environment Court made an error of law when deciding it did not have jurisdiction to require the removal of the wreck in the context of an application for resource consent to abandon the wreck;

(iii)On Ngāi Te Hapū Inc’s own case, the other substantive points of appeal were subsidiary to and intended to buttress the case for removal of the wreck; accordingly, they served little practical purpose if there was no jurisdiction to require removal of the wreck;

(iv)In any event, the other substantive points of appeal related principally to the evaluation of evidence and determinations of fact by the Environment Court and had little merit in the context of an appeal limited to points of law;

(v)There was not and could not be any challenge to the factual findings by the Environment Court that all that could be done to ameliorate the presence of the wreck had been done, and that further works beyond those required by the consent conditions would have detrimental effects on Ōtāiti and would be a safety risk.

[20]   In my results judgment, I also lifted the stay on the resource consents that the Environment Court had granted in its decision of 19 April 2018.8

[21]   In a further judgment dated 11 July 2018, I set out the full reasons for my earlier decision. I reserved costs for further submissions if necessary.

8      Nga Potiki a Tamapahore Trust v Bay of Plenty Regional Council [2018] NZEnvC 050.

The costs applications

[22]   By memorandum dated 10 August 2018, Mr Casey on behalf of the Astrolabe Trust submitted that increased or indemnity costs were warranted and sought costs on an indemnity basis of $237,559.25. Of this figure, $218,984.25 was sought jointly and severally against both Ngāi Te Hapū Inc and Ngā Potiki. The remaining sum of

$18,575.00, which concerned costs incurred after Ngā Potiki had abandoned its appeal, was sought solely against Ngāi Te Hapū Inc. The costs sought jointly and severally against both Ngāi Te Hapū Inc and Ngā Potiki included the Astrolabe Trust’s costs on the appeal by those parties against the stay of the resource consents granted by the Environment Court.

[23]   Mr Casey also submitted that the Court should award a proportion of costs against Mr Hovell personally on the basis the appeal was frivolous, vexatious and an abuse of process.

[24]   By memorandum dated 15 August 2018, Mr Cooney, counsel for the Regional Council (which was not separately represented at the hearing on 20 June 2018), sought costs of $42,816 jointly and severally against Ngāi Te Hapū Inc and the Ngā Potiki in respect of the substantive proceedings and the stay proceedings, with an additional

$699 to be awarded solely against Ngāi Te Hapū Inc in respect of a case management conference held after Ngā Potiki had abandoned its appeal. These costs were calculated as follows:

(a)$39,471 for the substantive proceedings on a 2B basis but with an uplift of 50 per cent because of the manner in which the appellants had conducted their appeal which had resulted in significant additional costs to the Regional Council and the Astrolabe Trust;

(b)$4,014 for the stay proceedings on a standard 2B basis with no uplift.

[25]   The Regional Council did not seek costs in relation to the hearing to dismiss the appeal.

[26]   On 19 September 2018, I convened a telephone conference attended by counsel for the Astrolabe Trust, the Regional Council and Ngā Potiki and by counsel representing Mr Hovell, who had applied for leave to withdraw as solicitor for Ngāi Te Hapū Inc. As recorded in my minute of 19 September 2018, with the consent of the other parties I granted leave for Mr Hovell to withdraw even though that had the result of Ngāi Te Hapū Inc being left unrepresented. I also made timetables orders for the filing of further memoranda.

[27]   By memorandum dated 25 October 2018, Mr Casey for the Astrolabe Trust advised that a settlement agreement has been entered into between the Astrolabe Trust, Ngā Potiki and Mr Hovell. As a result, the Astrolabe Trust is no longer seeking costs against those parties. The Astrolabe Trust is, however, still seeking the balance of its indemnity costs claim against Ngāi Te Hapū Inc. The terms of the settlement are confidential to the parties. However, the balance sought is in excess of $75,000.

[28]   By memorandum dated 2 November 2018, counsel for the Regional Council advised that a settlement agreement has been entered into between the Council and Ngā Potiki and that the Council is no longer pursuing its costs claim against that party. The memorandum advised that the Council is also seeking the balance of its costs from Ngāi Te Hapū Inc. The terms of this settlement are also confidential to the parties. However, the being a figure in excess of $20,000.

[29]   Despite being advised of the costs applications, Ngāi Te Hapū Inc has taken no steps in relation to the costs application. Accordingly, the respondents have asked the Court to proceed with the costs decision.

Applicable principles as to costs

[30]   As stated by the Supreme Court in Manukau Golf Club Inc v Shoye Venture Ltd and by the Court of Appeal in Bradbury v Westpac Banking Corporation, and as reflected in the High Court Rules 2016, it is a fundamental principle applying to the determination of costs in the general courts of New Zealand that costs follow the

event.9 While all matters relating to costs are at the discretion of the Court,10 that general discretion is qualified by the specific costs rules in the Rules and is exercisable only in situations not contemplated or not fairly recognised by the Rules. Ordinarily, the loser pays the winner’s costs according to the scale set out in the Rules. The scale reflects the complexity and significance of the proceeding and is assessed at two-thirds of the daily rate considered reasonable in relation to the proceeding.11

[31]   Rule 14.6 provides, however, that in the circumstances provided for in paragraphs (3) and (4) of the Rule, the Court may either make an order for increased costs, being an increase of costs otherwise payable in order to reflect certain circumstances, or an order for indemnity costs, being the actual costs, disbursements and witness expenses reasonably incurred by a party.

[32]   Rule 14.6(3) provides that the Court may order a party to pay increased costs if the party “has contributed unnecessarily to the time or expense of the proceeding” by, for example, “taking or pursuing an unnecessary step or an argument that lacks merit”. Rule 14.6(4) provides that the Court may also order a party to pay indemnity costs if the party has “acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding” or “ignored or disobeyed orders or directions of the Court”.12

[33]   The Court of Appeal in Bradbury summarised the distinction among the three broad approaches of standard scale costs, increased costs and indemnity costs as follows:13

(a)Standard scale costs apply by default where cause has not been shown to depart from the scale;

9      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8]; Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [6]; High Court Rules 2016, r 14.2(1)(a).

10     High Court Rules 2016, r 14.1(1).

11     Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [6]; Rule 14.2(1).

12     Rule 14.6(4)(a)

13 At [27].

(b)Increased costs may be ordered where there is failure by the paying party to act reasonably;

(c)Indemnity costs may be ordered where that party has behaved either badly or very unreasonably.

[34]   The Court noted that indemnity costs are “exceptional and require exceptionally bad behaviour” and that to justify an order for such costs the misconduct must be “flagrant”.14 Similarly, the Court of Appeal in Vining Realty Group Ltd v Moorhouse said that an award of indemnity costs is exceptional.15

Discussion

[35]   It is common ground that the Astrolabe Trust assumed a much more prominent role in the proceedings than the Regional Council. This is reflected in the determination made by Lang J in his decision of 11 April 2018 that the costs category for security for costs would be Category 2 for the Regional Council and Category 3 for the Astrolabe Trust for the purposes of r 14.2(b). Both respondents have proceeded on the basis that those categorisations should apply to their costs applications. The Regional Council has submitted that its costs should be assessed on a 2B basis while the Astrolabe Trust has submitted that, if its costs should be calculated by reference to the scale in the High Court Rules, the costs of the appeal should be assessed on a 3C basis. The Astrolabe Trust accepts, however, that costs of the stay proceedings should be assessed on a 2B basis.

[36]   I accept those categorisations and assessments are appropriate having regard to the differences in the respondents’ respective roles in the proceeding and the size and complexity of responding to the appeal and the significance of the appeal for the Astrolabe Trust. As Mr Casey submits, the consequences for the Astrolabe Trust of not obtaining the consents would have been very significant. It would either have to find a way of removing a wreck at an estimated cost in excess of $500 million when the expert advice was that removal would risk damage to the reef and risk to human

14     Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [28].

15     Vining Realty Group Ltd v Moorhouse [2010] NZCA 104, (2011) 11 NZCPR 879 at [131].

life, or the Astrolabe Trust would be in continuing breach of the RMA. I accept, therefore, that the Astrolabe Trust had no option but to devote considerable resources to defending the appeal.

[37]   Accordingly, the major questions for determination are whether, in the circumstances of these appeal proceedings, indemnity costs or increased are warranted for the Astrolabe Trust and whether increased costs are warranted for the Regional Council.

Indemnity costs or increased costs for the Astrolabe Trust

[38]   The focus of the Astrolabe Trust’s application is on obtaining indemnity costs against Ngāi Te Hapū Inc for costs it incurred in opposing the appeal proceedings on the basis Ngāi Te Hapū Inc:

(a)acted vexatiously, frivolously, improperly or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding;

(b)ignored or disobeyed orders or directions of the Court; or

(c)other reasons justify an order for indemnity costs.

[39]   Mr Casey says there could not have been any reasonable expectation on the part of Ngāi Te Hapū Inc of the appeal succeeding and that it is clear that Ngāi Te Hapū Inc did not undertake an objective, reasoned consideration of the grounds of appeal, its purpose, or its prospects of success. Mr Casey says Ngāi Te Hapū Inc’s counsel ought to have carefully reassessed the appeal following Lang J’s decision of 11 April in which Lang J identified apparent deficiencies in the appeal. Mr Casey also says:

(a)The appeal’s pointlessness and lack of merit should have been apparent when the appellants prepared their submissions on appeal and that the “strained efforts to support the appeal on what were at best tenuous and

in places nonsensical arguments, reinforced the lack of insight into the futility of the appeal”; and

(b)My consideration of the timing and merits of the appeal “reinforces the point that [the appeal] was doomed to failure”.

[40]   The Court of Appeal in Bradbury accepted that an indemnity award may be made where a party persists with what proper consideration would have shown was a hopeless case.16 That includes making allegations which ought never to have been made or unduly prolonging a case by groundless contentions.17

[41] As recorded at [19] above, I concluded that there was no merit in any of the substantive grounds of appeal, all of which were well out of time as they related to the initial decision of the Environment Court. I did not find that the appeal was “hopeless” as found by the Court of Appeal of the proceeding in Bradbury. However, the difference between having no merit and being “hopeless” is a fine one and not worth pursuing in this context.

[42]   However, I do not consider Ngāi Te Hapū Inc’s conduct of the appeal was “flagrant” in the sense contemplated by the Court of Appeal in Bradbury or that this an exceptional case of the kind referred to in Bradbury and in Vining Realty Group Ltd v Moorhouse.

[43]   Mr Casey has identified various deficiencies in the content and conduct of the appeal by Ngāi Te Hapū Inc. These include that the appellants were on notice that the appeal was out of time and that the Environment Court had made clear that it did not have jurisdiction to require the removal of the wreck by way of consent condition. Mr Casey says that if the appeal and the subsequent conduct of Ngāi Te Hapū Inc had any rational basis “it can only have been as a calculated strategy to delay the resolution of the resource consents, while causing maximum additional cost and inconvenience to the respondents.” He also says that Ngāi Te Hapū Inc had no regard for the effects of their conduct of the appeal on other, including the several iwi and community

16     Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [24].

17     At [29](e).

interests who were delayed in receiving funds that were contingent on the consents taking effect.

[44]   I consider those assessments to be too harsh. While I recognise that Ngāi Te Hapū Inc’s conduct of the appeal was at times confused, ill-advised and infuriating from the perspective of the respondents, I do not consider that this was the result of ill-intention on the part of Ngāi Te Hapū Inc or its relatively inexperienced counsel, Mr Hovell. Because of Mr Hovell’s withdrawal and the lack of engagement by any other representative of Ngāi Te Hapū Inc, I have no evidence or submissions on Ngāi Te Hapū Inc’s motivations before me. However, I consider it is reasonable to infer that Ngāi Te Hapū Inc’s appeal was motivated by a genuinely held opposition to a large wreck, which had been deposited on a site of considerable cultural, spiritual and environmental significance to Māori and to the region, being permitted to remain in place indefinitely.

[45] It is apparent that Ngāi Te Hapū Inc and Nga Potiki were not alone in that opposition, at least not initially. As recorded at [9] above, when the applications were notified, by far the majority of submitters were opposed to the consents being granted. That position changed, presumably as a consequence of the evidence and submissions put forward by the Astrolabe Trust and by the mitigation measures that the Astrolabe Trust agreed to put in place. While the Trust can be commended for the success of its efforts to bring the local community on side, it cannot have been any surprise that some were not prepared to accept an outcome that left the wreck on the reef.

[46]   I consider that the appeal proceedings amounted to a well-intentioned if misguided attempt to use the appeal process to get rid of the wreck. I consider that in taking and in pursuing the appeal Ngāi Te Hapū Inc, through Mr Hovell, became fixated on doing whatever they could to achieve that result, despite the evident weakness of their case and their responsibilities as appellants, including their responsibility to provide security for the respondents’ costs. It would appear in this regard that Ngāi Te Hapū Inc left the running of the appeal to Mr Hovell who lost sight of practical realities, lost the objectivity necessary to run a complex legal case, failed to comply with timetable orders and pursued arguments that had little prospect of success.

[47]   Nonetheless, I consider that both Ngāi Te Hapū Inc and Mr Hovell acted out of conviction and in pursuit of a result they considered to be of great importance to Māori and to the environment, and without regard for personal benefit. In that respect, they had no improper motive in the sense found by the Court of Appeal in Bradbury. It is also relevant to note that the motivation and preoccupation shown by Ngāi Te Hapū Inc and Mr Hovell in the conduct of the appeal are not uncommon in the context of proposals that have significant long-term consequences for the environment.

[48]   For these reasons, I do not consider that Ngāi Te Hapū Inc’s conduct was “exceptional” or amounted to “exceptionally bad behaviour” as contemplated by the Court of Appeal in Bradbury and Vining Realty Group Ltd v Moorhouse to warrant the imposition of indemnity costs under Rule 14.6(4).

[49]   I have also taken into account the observations of both the majority and the minority in the Supreme Court’s decision, Environmental Defence Society Inc v New Zealand King Salmon Co Ltd to the effect that litigation pursued in the public interest or for a non-pecuniary, non-commercial gain may justify a departure from ordinary costs principles and may be a relevant factor to determining whether costs should be ordered and the amount of any award in the circumstances of the case.18 While I do not consider the circumstances of the present case warrant a departure from ordinary cost principles, these observations confirm me in my view that this is not a situation warranting the imposition of indemnity costs.

Increased costs for Astrolabe Trust

[50]   I accept nevertheless that the appellants acted unreasonably in the way they conducted the proceedings. In particular, and in terms of r 14.6(3), I consider that Ngāi Te Hapū Inc contributed unnecessarily to the time and expense of the proceeding by failing to comply with directions of the court, both with respect to time table orders and the order to pay security for costs, and pursued arguments that lacked merit even after the merit of the appeal had been called into question by Lang J in his decision of

18     Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167 at [12] per Elias CJ and William Young J, at [38]–[41] and [45] per McGrath, Glazebrook and Arnold JJ.

11 April 2018. For these reasons, I consider an increase on the Astrolabe Trust’s costs calculated on a 3C basis is appropriate.

[51]   In Holdfast NZ Ltd v Selleys Pty Ltd, the Court of Appeal said that an increase of 50 percent on scale costs should grant a costs-claiming party a fair recovery for the step unnecessarily forced on it, assuming that the time allocated to the step has been reasonably calculated under the bands and that any greater recovery would mean that the party paying costs was contributing to the other party’s choice of special counsel. However, the Court went on to say that it should not be taken as saying that an uplift of more than 50 percent can never be justified, as there may be circumstances where a Court considers a higher award to be justified.19

[52]   I consider that this is a case where an uplift of more than 50 per cent is justified. In Mueller v Hendren, Heath J awarded a 75 per cent uplift where grounds for indemnity costs had been established, but considered a lesser award was warranted.20 While I have concluded that the case for indemnity costs has not been established in this case, that was largely due to my view that Ngāi Te Hapū and its counsel were genuine and misguided and was not motivated by self-interest, so their misconduct in pursuing the appeal was not “flagrant” or “exceptional”. As noted, however, the consequences for the Astrolabe Trust of not getting the consents were very significant with the consequence that the Astrolabe Trust was required to devote considerable resources to defending the poorly prosecuted appeal.

[53]   In all the circumstances, therefore, I consider an uplift of 70 percent on scale costs to be appropriate.

[54]   Mr Casey has provided a calculation of High Court costs for the main appeal on a 3C basis and for the stay appeal on a 2B basis, being $92,730.00 and $5,129.00 respectively. I consider an uplift of 70 per cent to the first figure is appropriate. I am not persuaded that an uplift is appropriate for the costs of the stay appeal which was resolved by my results judgment without the need for further input by the respondents. This brings the total costs for the Astrolabe Community Trust to $162,770. This

19     Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [47] – [48].

20     Mueller v Hendren (2009) 19 PRNZ 432 (HC)

amount, less the amount of the settlement with Ngā Potiki and Mr Hovell, is recoverable from Ngāi Te Hapū Inc.

Increased costs for the Regional Council

[55]   For the substantive proceedings, the Regional Council seeks $39,471, being an uplift of 50 per cent on the standard calculation, on a 2B basis, of $26,314. The Regional Council does not seek any uplift on the costs of the stay proceedings and seeks $4,014.

[56]   Mr Cooney for the Regional Council contends that the appellants failed to comply with the directions of the court by seeking last minute extensions for filing legal submissions, still failing to file legal submissions in accordance with Court directions, failing to proceed towards the hearing in a disciplined manner and seeking adjournments for a fixed hearing date without valid reasons, the appeal had no realistic prospect of success and all points of appeal lacked merit.

[57]   These points largely mirror those made by Mr Casey, albeit in lower key. I consider them valid for the reasons already given. I accept that, as a consequence, the Regional Council incurred greater costs than would otherwise have been the case and that an uplift on scale costs is appropriate notwithstanding the Regional Council’s less substantial role in the proceedings. However, given that lesser role, I am not persuaded that an uplift of 50 percent is appropriate bearing in mind that an uplift of that magnitude is usually at the upper end of the range. For these reasons, I consider an uplift of 40 percent to be more appropriate.

[58]    An uplift of 40 per cent on scale costs of $26,314 brings the costs for the Regional Council on the substantive appeal to $36,839.60. With the addition of the costs for the stay proceedings, the Regional Council’s total costs come to $40,853.60. This amount, less the amount of the settlement with Ngā Potiki and Mr Hovell, is recoverable from Ngāi Te Hapū Inc.

Result

[59]   Having regard to the settlements reached by the Astrolabe Community Trust and the Bay of Plenty Regional Council with the Ngā Potiki a Tamapahore Trust and Mr Hovell, I order that Ngāi Te Hapū Inc pay:

(a)The Astrolabe Community Trust costs of $[Redacted];

(b)The Bay of Plenty Regional Council costs of $[Redacted].

G J van Bohemen J