Opua Coastal Preservation Incorporated v Far North District Council

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA119/2017
[2020] NZCA 281

BETWEEN	OPUA COASTAL PRESERVATION INCORPORATED Appellant
AND	FAR NORTH DISTRICT COUNCIL First Respondent MINISTER OF CONSERVATION Second Respondent DOUGLAS CRAIG SCHMUCK Third Respondent

Court:	Brown and Gilbert JJ
Counsel:	T H Bennion and E A Whiley for Appellant J G A Day for First Respondent B R Arapere and W M C Randal for Second Respondent J A Browne and C H Prendergast for Third Respondent
Judgment: (On the papers)	13 July 2020 at 10.30 am

JUDGMENT OF THE COURT
Costs

AThe appellant must pay the first respondent costs of $9,589.00 and disbursements of $1,384.00.
BThe appellant must pay the third respondent costs of $11,819.00 and disbursements of $3,236.90.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

In a judgment dated 20 July 2018 this Court allowed an appeal against the High Court judgment and directed that the Far North District Council (the Council) and Mr Schmuck were jointly and severally liable to pay Opua Coastal Preservation Inc (Opua) one set of costs for a standard appeal on a band A basis and usual disbursements.[1]
[1]Opua Coastal Preservation Inc v Far North District Council [2018] NZCA 262.
The Supreme Court allowed an appeal on 29 October 2019.[2] In a subsequent judgment dated 23 December 2019 the Supreme Court quashed this Court’s costs order and directed this Court to redetermine costs in the light of the Supreme Court’s judgment allowing the appeal.[3]
[2]Schmuck v Opua Coastal Preservation Inc [2019] NZSC 118.
[3]Schmuck v Opua Coastal Preservation Inc [2019] NZSC 155.
The Council seeks costs on a band A basis ($9,589.00) together with disbursements of $1,384.00. Mr Schmuck also seeks costs on a band A basis ($11,819.00)[4] and disbursements of $3,236.90.
[4]The additional $2,230 concerns an application for increased security for costs ($1,115) and second counsel ($1,115).
Mr Bennion for Opua submits that given the public interest in the appeal rebounded mostly to the benefit of the Council and the fact that Mr Schmuck took the lead role in the appeal while the Council took a limited role, costs in relation to the Council should lie where they fall. He further submits that any award of costs to Mr Schmuck should be reduced by 50 per cent to account for Opua’s success on an issue of some public interest.
We do not agree with the submissions for Opua. We note that the Supreme Court, while accepting that there was some public interest to Opua’s position, considered that that was limited and did not justify an order that costs should lie where they fall.[5] Making a small allowance for the public interest aspect of the appeal and reflecting the parties’ different roles, the Supreme Court awarded Mr Schmuck $20,000 and the Council $15,000, but with usual disbursements.
[5]Schmuck v Opua Coastal Preservation Inc, above n 3, at [8].
In our view, the costs sought by the Council and Mr Schmuck, which are significantly less than the sums awarded in the Supreme Court, are reasonable and no deduction for a public interest factor is required.

Result

Opua must pay the Council costs of $9,589.00 and disbursements of $1,384.00.
Opua must pay Mr Schmuck costs of $11,819.00 and disbursements of $3,236.90.

Solicitors:
Bennion Law, Wellington for Appellant
Law North Limited, Kerikeri for First Respondent
Crown Law Office, Wellington for Second Respondent
Henderson Reeves Lawyers, Whangarei for Third Respondent

CaseChat Overview and Summary

The Court of Appeal was called upon to determine the costs of an appeal in the case of Opua Coastal Preservation Incorporated v Far North District Council. This matter arose from an initial decision made by the High Court which was subsequently appealed to the Court of Appeal, and then to the Supreme Court. The Supreme Court allowed the appeal and directed the Court of Appeal to redetermine the costs in light of its judgment.

The legal issues before the Court of Appeal involved the assessment of costs in light of the Supreme Court's decision. Specifically, the Court of Appeal was tasked with determining whether the costs awarded to the respondents, the Far North District Council and Mr. Schmuck, were appropriate given the public interest in the appeal and the respective roles of the parties in the litigation. The appellant, Opua Coastal Preservation Incorporated, argued that the costs should lie where they fall, considering the public interest in the appeal, and that any award of costs to Mr. Schmuck should be reduced by 50% to account for the appellant's success on an issue of public interest.

The Court of Appeal found that the costs sought by the respondents were reasonable and did not require any deduction for a public interest factor. The Court noted the Supreme Court's consideration of the public interest in the appeal and its decision not to order costs to lie where they fall. The Court also considered the respective roles of the parties in the litigation, with Mr. Schmuck taking the lead role in the appeal and the Council taking a limited role. The Court concluded that the costs sought by the respondents were appropriate and awarded the respondents their costs as requested.

Accordingly, Opua Coastal Preservation Incorporated was ordered to pay the Far North District Council costs of $9,589.00 and disbursements of $1,384.00, and to pay Mr. Schmuck costs of $11,819.00 and disbursements of $3,236.90.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established