Owens v Tauranga Marina Society Incorporated
[2025] NZHC 3027
•14 October 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-0135
[2025] NZHC 3027
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER
of the ownership, operation and administration of the Tauranga Marina by the Tauranga Marina Society and
the Tauranga City Council
BETWEEN
DOUGLAS CHARLES OWENS, MOHI-TOMA ROBERT TE
KAPUARANGI OWENS and TAMAWERA
PUTAUAKI LOUIS OWENS as trustees of the Nereides Trust
Applicants
AND
TAURANGA MARINA SOCIETY INCORPORATED
First respondent
TAURANGA CITY COUNCIL
Second respondent
Hearing: On the papers Counsel:
G J Judd KC for applicants
D P Weaver for first respondent
S A Armstrong KC and SCM Waalkens for second respondentDate of judgment:
14 October 2025
JUDGMENT OF JAGOSE J
[Costs]
This judgment was delivered by me on 14 October 2025 at 12.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
OWENS, v TAURANGA MARINA SOCIETY INC - Costs [2025] NZHC 3027 [14 October 2025]
[1] My 9 September 2025 judgment dismissed the trustees’ 5 September 2024 application for an interim order and granted the City Council’s 19 February 2025 application to the extent the trustees were to file and serve a more explicit statement of claim.1 I added:2
In my preliminary view, as the unsuccessful party—in this proceeding of average complexity, in which a normal amount of time is considered reasonable for each step—the trustees should pay each the City Council and Society 2B costs and disbursements on their opposition to the application for interim orders and the City Council alone 2B costs and disbursements on its interlocutory application.
but otherwise reserved costs for determination on short memoranda.3 Also, my 17 September 2025 minute declined the trustees’ 11 September 2025 informal application for my judgment’s recall, in which the City Council joined to a limited extent and on which I ordered the trustees pay the Society 2B costs on its opposition.4
[2] The City Council and Society each accepted my preliminary view, seeking 2B costs and disbursements respectively amounting to $23,930 (including for second counsel, and downrating its claim for steps in filing memoranda to 2A) and $13,030. The trustees also accept my preliminary view, except not for payment of costs to the City Council on the trustees’ interim orders application.
[3] For the trustees, Gary Judd KC argues no interim order was sought against the City Council, which did not file any notice of opposition to the application and therefore was not to be heard in opposition except with leave.5 He points to the principle embodied in r 14.15 of the High Court Rules 2016, which states:
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a) several defendants defended a proceeding separately; and
(b) it appears to the court that all or some of them could have joined in their defence.
1 Owens v Tauranga Marina Society Inc [2025] NZHC 2601 at [42]–[43].
2 At [45] (footnotes omitted).
3 At [46].
4 Owens v Tauranga Marina Society Inc HC Tauranga CIV-2024-470-0135, 17 September 2025 (Minute of Jagose J) at [8]–[9].
5 High Court Rules 2016, r 7.24.
[4] Further, Mr Judd submits my indicated award of costs is in respect only of the interlocutory applications, and is not an opportunity to obtain costs on unrelated steps in the proceeding. And he argues there was no “need” (his emphasis) for the City Council to be represented by two counsel, notwithstanding both made submissions.
[5] No point previously was taken with the City Council’s participation in opposing the trustees’ application for interim orders. The application itself expressly relied on the allegation:
[T]he [City Council] is failing in its duty to protect the interests of the ratepayers of Tauranga, including the [trustees], by its failure to require the [Society] to act lawfully and in accordance with its obligations under the management agreement.
The City Council thus was entitled to be heard. It was enough it had an interest in the application.6 The City Council also noted “a significant degree of overlap in the issues which arise on the two applications”. It is not seeking costs on step 23 for filing opposition to an interlocutory application. Rather, in relation to the trustees’ application, the City Council seeks costs on a variety of case management steps (although it incorrectly elevates two of those to step 24, which is for the preparation of written submissions on the trustees’ application). The case management steps claimed by the City Council should be for steps 11 (x 4, 2 at 2A as conceded) and 12. I calculate that to reduce the City Council’s costs and disbursements claim to $18,672.
[6] So far as the Council’s representation by two counsel is concerned, “second counsel are always desirable”,7 reflecting “an appreciation that junior counsel will have made substantial contribution to the written argument, and will best develop as advocates by advancing part of the oral argument”.8 The question is if the liable party should have to bear the cost of that election.9
[7]This Court previously has indicated the relevant factors:10
6 By analogy with r 4.3(3) of the High Court Rules.
7 Perkins v Purea [2010] NZCA 272 at [5].
8 Kós P “Role of Junior Counsel” (1 March 2018) Courts of New Zealand
< CJ “Role of Junior Counsel” (21 June 2022) Courts of New Zealand
< Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 14 PRNZ 155 (HC) at [21].
10 Attorney-General of Samoa v TVWorks Ltd [2012] NZHC 824 at [8].
A review of relevant case law suggests this question of discretion is shaped largely by the judge’s intuitive assessment of the complexity of the case at hand. Notably, those cases where costs for second counsel have been awarded have typically been complex ones.11 Equally, those cases where costs have been refused generally cite the lack of any unusual complexity or difficulty that is out of the ordinary.12 While some cases do not fit that pattern,13 the general trend is clear and, in any event, the final decision is discretionary.
An additional factor is if all counsel were “fully engaged”.14
[8] All counsel were fully engaged in this complex case, which raised difficult matters of statutory interpretation for application against unsatisfactory pleadings, justifying the City Council’s election of second counsel be borne by the trustees. I will allow for second counsel.
[9]I therefore order the trustees pay:
(a)the Society $13,030 and
(b) the Council $18,672— in costs and disbursements.
—Jagose J
Counsel/Solicitors:
G J Judd KC, Kerikeri
S A Armstrong KC, Auckland
K J Patterson, Barrister, Tauranga D P Weaver, Barrister, Tauranga Harris Tate Limited, Tauranga
Rice Speir, Auckland
11 Referring to Belcher v Commissioner of Inland Revenue (2010) 24 NZTC 24,225 (HC); Outtrim v Li HC Auckland CIV-2006-004-2768, 10 March 2010; and Sanford Ltd v Chief Executive of the Ministry of Fisheries HC Wellington CIV-2009-485-379, 18 February 2010.
12 Referring to General Distributors Ltd v Waipa District Council HC Auckland CIV-2008-404- 4857, 4 March 2009; Network Cabling Solutions Ltd v Ice Group (NZ) Ltd HC Wellington CIV- 2008-485-1360, 15 December 2010; and T&T Drainage Ltd v Rennell HC Auckland CIV-2009- 404-1506, 16 February 2011.
13 Referring to P v Attorney-General (2010) 20 PRNZ 78 (HC) (a case warranting 2B categorisation); and Catley v Waipa Corporation Ltd HC Auckland CIV-2008-404-7975 30 July 2010 (a case warranting 2B categorisation, albeit, in awarding costs, the Judge stated at [9] “any difficulties due to the complexity of the proceeding will have been overcome by the assistance of second counsel”).
14 Mediaworks TV Ltd v Staples [2019] NZCA 273 at [6].
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