Norcourt Properties Limited v Dury

[2008] NZCA 435

IN THE COURT OF APPEAL OF NEW ZEALAND

CA148/2008
[2008] NZCA 435

BETWEENNORCOURT PROPERTIES LIMITED

First Appellant

ANDM D COURTNEY ORTHODONTICS LIMITED

Second Appellant

ANDGEOFFREY CHARLES DURY AND OTHERS

Respondents

Hearing:21 October 2008

Court:Robertson, Randerson and Heath JJ

Counsel:G A Paine for Norcourt Properties Limited and M D Courtney Orthodontics Limited

H F Drake, in person, one of the Respondents in the appeal as representative of all Respondents

Judgment:21 October 2008 

ORAL JUDGMENT OF THE COURT

A        THE APPEAL IS DISMISSED

BUsual disbursements shall be paid by the appellants to the respondents.  In the absence of agreement, those disbursements shall be fixed by the Registrar.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

[1]       Dr Courtney is an orthodontist.  His family interests hold 50% of the shares of a company called Norcourt Properties Ltd and 100% of a company called M D Courtney Orthodontics Ltd.  Norcourt owns a property at 9 Elmira Avenue, Palmerston North.  Norcourt leases that property to M D Courtney Orthodontics.  Dr Courtney wanted to practise his profession from that property.

[2]       Dr Courtney sought a resource consent from the Palmerston North City Council to enable the orthodontics business to be operated from the property.  The Council granted the application on a non-notified basis.  Local residents brought judicial review proceedings to challenge the Council’s decision.  Their application was heard by Miller J, in the High Court at Palmerston North.

[3]       Norcourt and M D Courtney Orthodontics were joined as second and third defendants to the proceeding.  They made a deliberate decision that they would be separately represented.

[4]       In his substantive judgment (Dury v Palmerston North City Council HC PN CIV 2005-454-869 11 September 2006), Miller J made a declaration that the Council acted unlawfully in granting the resource consent on a non-notified basis.  The resource consent was set aside. 

[5]       The Council appealed against that finding.  In a judgment given on 20 November 2007, this Court allowed the appeal and reinstated the resource consent: Palmerston North City Council v Dury [2007] NZCA 521. Throughout its judgment, this Court referred to Norcourt and M D Courtney Orthodontics Ltd “loosely” as either “Dr Courtney” or “the Courtney interests”. Chambers J, for the Court, explained why:

[6] The council was aggrieved with various aspects of the judge’s decision and brought an appeal (CA196/06). The council’s appeal was quickly followed by an appeal by Dr Courtney’s interests (CA211/06). We should explain that M D Courtney Orthodontics Limited, the first appellant in CA211/06, is the company under which Dr Courtney practises his profession. That company leases 9 Elmira Avenue from Norcourt Properties Limited, the second appellant. Norcourt Properties is 50% owned by Dr Courtney and his wife and 50% owned by William Fearon and his wife, who are property investors. As it happens, the resource consent had been applied for by Dr Courtney himself. Nothing turns on this and we shall refer to these appellants loosely as either Dr Courtney or the Courtney interests.

[6]       Because the appeal succeeded, questions of costs arose as between the “Courtney interests” and the local residents in respect of the High Court proceedings.  Those costs were remitted to the High Court to fix.  The Court said:

[99] The Courtney interests are also entitled to costs in the High Court. We hope they and the residents will be able to agree them. If they cannot, then the High Court will fix them. Obviously, this is a category 2 proceeding. There would not seem to be any case for reduced or increased costs, but we have insufficient information about all the steps taken in the High Court and the appropriate band for each step. It is better the High Court undertake that exercise.

[7]       Miller J dealt with the question of costs on the papers in a judgment given on 4 March 2008: Dury v Palmerston North City Council HC PN CIV 2005-454-869.  He said that two questions arose:

(a)Whether both Norcourt and M D Courtney Orthodontics should have costs; and

(b)Whether any award ought to be reduced on the ground that the Council carried the burden of evidence and argument, so reducing work required of other defendants.

[8]       The Judge concluded that it was appropriate that the two companies were represented; the economic interests of both were affected by the application.  However, he saw Norcourt’s and M D Courtney Orthodontic’s interests as identical.

[9]       For that reason, Miller J made one award of costs.  He made no reduction to reflect the ancillary nature of the involvement of the two companies in the litigation.  He ordered that the residents pay the sum of $12,640 plus fixed disbursements to meet the costs of both companies.

[10]     Norcourt and M D Courtney Orthodontics appeal against Miller J’s decision, submitting that the Judge erred in deciding to award only one set of costs and in fixing quantum below that sought.

[11]     Mr Paine submitted, on behalf of Norcourt and M D Courtney Orthodontics, that Miller J erred in considering that he had a discretion as to costs to exercise.  Mr Paine’s short point, relying on [99] of the Court of Appeal judgment, was that this Court had found that both Norcourt and M D Courtney Orthodontics were entitled to costs in the High Court, leaving only quantum to be fixed.  Mr Paine submitted that Miller J was bound by that finding.

[12]     An appeal against an order for costs will rarely succeed.  Such an appeal is brought against the exercise of a discretion.  To succeed on such an appeal an appellant must demonstrate that the Judge took into account irrelevant factors, failed to take account of relevant factors, erred in principle or was plainly wrong: see Shirley v Wairarapa District Health Board [2006] 3 NZLR 523 (SC) at [15].

[13]     In this case the Court of Appeal expressly remitted questions of costs to be dealt with by the High Court, in the knowledge that the High Court Judge had a better understanding of the way in which the proceeding had been conducted.  This Court clearly thought the Judge was in the best position to assess what orders were appropriate.  The language employed at [99] referred “loosely” to the two companies and cannot be said to amount to a direction that the Judge was required to award two sets of costs.  The language used is consistent with the way in which the award of costs in favour of the “Courtney interests” on the successful appeal was expressed at [97] of the Court of Appeal judgment.

[14]     On remission of the costs issue to the High Court, it was for Miller J to determine what costs should be awarded and on what basis.  The whole purpose of the exercise was to enable costs to be determined by the person best placed to do so. This Court did not place any fetter on the exercise of the Judge’s discretion as to costs.

[15]     It was open to the Judge to decide to award one set of costs, for the reasons he gave.  Indeed, we consider he was right to do so because of the community of interest involved.  There is no basis on which to interfere with his discretion as to quantum.  That being so, there is no ground for appellate intervention and the appeal against the costs order is dismissed.

[16]     The respondents were represented by one of their number, Mr H F Drake.  Costs cannot be awarded in favour of litigants in person.  However, disbursements can be ordered.  Usual disbursements are awarded in favour of the respondents for whom Mr Drake spoke today.  Those disbursements shall be fixed by the Registrar, in the absence of agreement between the parties.

Solicitors:
Bruce Andrews for Appellants