O'Keefe v New Plymouth District Council

[2021] NZHC 484

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2020-443-000025

[2021] NZHC 484

BETWEEN

WAYNE O’KEEFE

Applicant

AND

NEW PLYMOUTH DISTRICT COUNCIL

First Respondent

AND

TARANAKI ANGLICAN TRUST BOARD

Second Respondent

On the papers:
Judgment:	12 March 2021

JUDGMENT OF DOOGUE J

[Costs]

CIVIL

This judgment was delivered by me on 12 March 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WAYNE O’KEEFE v NEW PLYMOUTH DISTRICT COUNCIL [2021] NZHC 484 [12 March 2021]

[1]This is an application for costs by the second respondent.

[2]        On 23 November 2020 I declined an application for judicial review in which the applicant sought an order quashing the New Plymouth District Council’s decision to grant resource consent to the Taranaki Anglican Trust Board and to direct that the Trust Board’s application for resource consent be notified on a limited basis to the applicant and other affected residents of neighbouring properties. Resource consent had been given to the Taranaki Anglican Trust Board to redevelop St Mary’s Cathedral complex.

[3]In declining the application for judicial review I reserved the issue of costs.

[4]        An attempt has been made by the parties to resolve the issue of costs but that has not been successful.

[5]        There is no reason why costs in this case should not follow the event and be payable to the second respondent (r 14.2 High Court Rules).

[6]        As a starting point, costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step. No issue is taken by the applicant that that should be the case here.

[7]Scale costs in respect of these proceedings are:

Commencement of defence by respondents	2.0 days
Preparation for case management conference	0.4 days
Preparation of affidavits/bundle	2.0 days
Preparation for hearing	2.0 days
Appearance at hearing	1.0 day

That comprises 7.4 days at $2,390 per day, giving a total of $17,686.

[8]        Counsel for the second respondent submitted that increased costs should be ordered under r 14.6 on the following grounds:

(a)the applicant pursued arguments that were unnecessary and lacked merit; and

(b)the applicant failed without reasonable justification to accept a settlement proposal.

[9]        The applicant pursued a number of arguments that were highly technical in nature, misdirected and largely irrelevant. These arguments were unnecessary and lacked merit. These included submissions regarding the ss 104 and 104D assessments, raising issues relevant to the substantive evaluation of the consent application rather than to the question of notification.

[10]      In addition, the applicant both pleaded and pursued at the hearing arguments regarding the viewshafts which were clearly misconceived, including that the viewshaft rule under the proposed District Plan was directed at protecting views both to and from Marsland Hill.

[11]      I found the viewshaft rules were of peripheral relevance to the applicant’s concerns regarding the visual and amenity effects of the relocated vicarage, not the least as a result of the net reduction in terms of intrusion into the viewshaft involved, and yet a substantial focus of the submissions and argument at the hearing was directed to that topic.

[12]These dimensions of the applicant’s case warrant increased costs above scale.

[13]      The only issue that I considered was of merit was in the area of “big event” management at the Cathedral complex.

[14]      An offer of settlement in respect of “big event” management was made. The settlement offer was a reasonable one. It was made after extensive trial preparation had been undertaken, and the applicant should therefore have been well placed to undertake a realistic assessment of the offer in conjunction with his legal adviser.

[15]      In this case a substantial element of the total costs incurred by the second respondent post-dated the settlement offer, ie preparing submissions for the hearing

and attending the hearing. I consider the failure to accept the settlement offer (causing this additional work and expense) warrants an increase over scale costs.

[16]      The second respondent seeks costs above scale in the range of 20% to 30%. The applicant submitted that it is not in the interests of justice for any uplift to be applied. If anything, his counsel argues there should be a discount of 20% to 30%, although this aspect of his defence to the application for costs was not developed.

[17]      I see no reasonable grounds to discount the scale costs, but for the reasons advanced by the second respondent I consider costs 20% above scale are appropriate in this case.

Result

[18]I order costs of $21,223 be paid by the applicant to the second respondent.

Doogue J

Solicitors:

RMY Legal, New Plymouth Gifford Devine, Hastings