Pascoe v Minister for Land Information

[2025] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-048 CIV-2024-443-008 CIV-2024-443-036 CIV-2024-485-048 [2025] NZHC 3241

UNDERthe Public Works Act 1981 and a second notice of intention to take land from T J S and D A Pascoe

BETWEENTONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Applicants/Appellants

AND  MINISTER FOR LAND INFORMATION

Respondent

Hearing:                   On the Papers

Counsel:                   Applicants/Appellants self-represented

(assisted by M Gibbs with R Gibbs in attendance)
R L Roff, J M Prebble, K Gaskell and E Harris for Respondent

Judgment:                29 October 2025

JUDGMENT OF McQUEEN J

[Costs]

[1]        On 2 July 2025, this Court delivered judgments in four matters which were set down to be heard together (the proceedings).1

1      Pascoe v Minister for Land Information [2025] NZHC 1782 (Objection Appeal CIV-2024-443- 36); Pascoe v Minister for Land Information [2025] NZHC 1783 (Original JR Application CIV-2021-443-48); Pascoe v Environment Court [2025] NZHC 1784 (New JR Application CIV-2024-443-8); and Pascoe v Minister for Land Information [2025] NZHC 1785 (Stay Appeal CIV-2024-485-48).

PASCOE AND PASCOE v MINISTER FOR LAND INFORMATION [2025] NZHC 3241 [29 October 2025]

[2]        The parties have been unable to agree on costs and have filed submissions as directed by the Court. I now determine costs on the papers.

The Minister’s position

[3]        The Minister successfully defended the proceedings and submits that on an ordinary application of the principles relevant to the determination of costs, the Minister is entitled to costs. The Minister says that there are no grounds to diverge from an award of costs on the ordinary basis.

[4]        The Minister seeks costs of $126,192 on a category 2B basis and disbursements of $1,488.11, as particularised in a schedule attached to the Minister’s memorandum as to costs.

[5]        The quantum has been calculated by way of reference to the steps taken from the outset of the proceedings, excluding steps on which costs have already been awarded:

(a)Costs have been claimed for steps taken in the Original JR Application (CIV-2021-443-48)   in   relation   to    hearings    before    Grice J  (28 September 2022) and Isac J (2 October 2023) for which costs have not yet been determined. The Minister was successful in both matters.2 Justice Grice directed costs in relation to the

28 September  2022  hearing  be determined following judgment in the substantive proceeding.3 Costs in relation to the 2 October 2023 hearing before Isac J were also unable to be agreed between the parties and were similarly directed to be determined following judgment in the substantive proceeding.4

(b)Costs have not been claimed in relation to the interim relief matter

2      Pascoe v Minister [for] Land Information [2022] NZHC 3173; and Pascoe v Minister for Land Information [2023] NZHC 2844.

3      Pascoe v Minister [for] Land Information [2023] NZHC 795 at [11].

4      Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-48, 13 December 2024 (Minute of McQueen J).

heard by O’Gorman J, as they have already been determined.5

(c)Steps which relate to actions taken following the bundling of the proceedings have been claimed where relevant only once, rather than four times. For example, where a case management conference occurred or memorandum filed in relation to all four matters, only  one claim is made for that attendance or memorandum.

[6]        The Minister also seeks certification for second counsel in relation to the hearings of the proceedings between 15 to 17 July 2024 and on 12 August 2024. The Minister submits certification for second counsel is appropriate in the circumstances given the complexity of the legal and factual scheme underlying the proceedings and the manner in which they were conducted by Mr and Mrs Pascoe (the Pascoes).

The Pascoes’ position

[7]        The Pascoes oppose any order for costs against them. Instead, they seek an order that the Minister make a reasonable contribution towards their costs, and in the alternative, that the making of any costs order should be adjourned until resolution of appellate proceedings, or that costs should lie where they fall, or that costs should be reduced to a nominal sum.

[8]        The Pascoes say the law governing the draconian power of the state to compulsorily acquire land, including any determination of costs, is constitutional and human rights law, providing and protecting every citizen’s right to their land, and restricting the Government’s power to take citizens’ land by use of force.

[9]        The Pascoes submit that the Court has discretion in public law cases to depart from the usual principle of costs following the event; especially where appeals are on foot, there is public interest in the matter as it concerns the compulsory acquisition of land, and where inequality of arms and impecuniosity are engaged.

5      Pascoe v Environment Court [2024] NZHC 1169.

[10]      The Pascoes submit that awarding costs against them would be unfair as they may be ultimately successful in the Court of Appeal and/or the Supreme Court and that an award of costs would prejudice their ability to pursue the judicial oversight of those courts.

[11]      The Pascoes say that the Court of Appeal has already determined that the proceedings raise matters of public interest.6 They say that the Minister accepts the complexity of the legal and factual scheme underlying the proceedings. They say that they should not be penalised for the complexity of the legal and factual scheme and lack of clarity. Overall, the Pascoes submit that this is an occasion where an unsuccessful party should not bear the burden of costs, including because the litigation served the public interest.

[12]      The Pascoes object to me determining costs for the matters heard by Grice and Isac JJ, submitting that r 14.9 of the High Court Rules 2016 prevents me from doing so. They also raise a concern about the Minister’s failure to provide invoices or proper proof that the Minister has incurred any costs and expenses at all. They rely on         r 14.2(1)(f) of the High Court Rules and say that Waka Kotahi | New Zealand Transport Agency (NZTA) are meeting any court costs associated with the objection proceeding and other related proceedings. They say that costs must reflect “actual liability”.7

Discussion

[13]      While costs are at the discretion of the Court, their determination should so far as possible be predictable and expeditious, and follow the event.8 The Minister was entirely successful in defending the appeals and judicial review applications, therefore in the normal course the Minister would be entitled to costs from the Pascoes.

[14]      I am not satisfied it is appropriate in the present case to depart from that usual position. In my view, the Minister’s overall approach to costs is reasonable in all the circumstances.

6      Pascoe v Minister for Information CA482/2025 18 June 2025 at [18]–[19]. This is a decision of the Court of Appeal Registrar dispensing with the requirement that the Pascoes pay security for costs in an appeal against the Objection Appeal.

7      Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, [2018] 2 NZLR 70 at [41].

8      High Court Rules 2016, rr 14.1, 14.2(1)(a) and subs (1)(g).

[15]      First, I do not accept, as the Pascoes argue, that it is orthodox that costs are not determined in cases such as this until all appeals are resolved. The Pascoes rely on the Environment Court’s approach to costs in relation to an earlier proceeding under the Resource Management Act 1991 (RMA), where it only determined costs once the relevant RMA judgments were no longer under appeal.9 However, this Court’s approach to costs is different to that in the Environment Court, as the High Court Rules sets out a costs regime of a regulatory character.10

[16]      There is no presumption that determination of costs should be deferred pending an appeal.11 A successful party is entitled to the fruits of any costs award,12 and an appeal does not operate as a stay.13 Consistent with this, I record that orders for costs against the Pascoes have been made in the Court of Appeal and in the Supreme Court.14 Should the Pascoes succeed on any of their appeals, the question of costs awards made will be reconsidered as necessary. I am not persuaded by the Pascoes’ suggestion that there is no urgency for determining costs in public law cases, such as the proceedings, given the “vast resources of the Government”.

[17]      Second, an unsuccessful litigant in person is liable to pay costs to a represented party in the usual way.15 Impecuniosity is not a shield to a costs award.16 In exceptional circumstances the Court has reduced or refused costs, using the discretion under       r 14.7(g). The Court generally expects parties to have considered the financial implications of failure when deciding to commence or defend litigation. Therefore, the Minister is entitled to costs like any other party, and the asserted impecuniosity of the Pascoes is not a bar to costs being awarded against them.

9      Director-General of Conservation v Waka Kotahi New Zealand Transport Agency [2023] NZEnvC 100 at [7]–[11].

10 At [12]–[19]. See also Te Rangatiratanga o Ngati Rangitihi Inc v Bay of Plenty Regional Council HC Tauranga CIV-2010-470-936, 17 February 2011 at [11] citing Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606.

11     Strathboss Kiwifruit Ltd v Attorney-General [2019] NZHC 62 at [6]–[9].

12     Taueki v Horowhenua District Council [2017] NZHC 1742 at [6].

13     Court of Appeal (Civil) Rules 2005, r 12; and see also, Clayton v Currie [2018] NZHC 2544 at [4].

14     See Pascoe v Minister for Land Information [2024] NZCA 557 at [134]; and Pascoe v Minister for Land Information [2025] NZSC 114 (Supreme Court leave to appeal decision) at [11].

15     David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [2.45]–[2.46].

16     Foni v Foliaki [2018] NZHC 3126 at [5].

[18]      Nor does the fact that the Pascoes have previously been granted fee waivers (at least in part) because of impecuniosity mean no award of costs against them is properly available. The approach to fee waivers and security for costs include the promotion of access to justice; here, the Pascoes have pursued their claims and failed. In the circumstances, I am not persuaded impecuniosity is a special reason why costs against the Pascoes should be reduced or refused.

[19]      Rule 14.7(e) of the High Court Rules provides that a court may refuse to make an order for costs or reduce any award if the proceeding concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding.

To warrant such a reduction or refusal of a costs award:17

(a)the proceeding must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant; and

(b)the unsuccessful litigant must also have acted reasonably in the conduct of the proceeding.

[20]      I accept that the compulsory acquisition of their land is certainly of significance to the Pascoes. In addition, I acknowledge the exercise of such powers are in principle of public interest because of their serious nature. This, however, does not mean that the award of costs should not be approached in the usual way in relation to the specific proceedings under consideration.

[21]      The Minister argues that the proceedings were without merit, raised issues not relevant to an appeal of an Environment Court decision, did not concern matters of genuine public interest and were conducted in a manner that increased the Minister’s costs.

17     Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9].

[22]      Given my conclusions in the substantive judgments in proceedings, I am not satisfied that the proceedings were meritorious and of general importance beyond the interests of the Pascoes, such as to justify a refusal or reduction of costs.

[23]      The Pascoes rely on Deane v Attorney-General to contend that the Crown should contribute to their costs.18 I do not consider that case to be comparable. The circumstances of the claims in Deane related to offers back after land was said to be no longer required for a public work. The Court found the land in the first proceeding involving Mr Deane must be offered back to Mr Deane and that the second proceeding involving the Levin plaintiffs was still required for an intended public work. The Court described the matters as “unusual” in terms of costs. Mr Deane succeeded in his claim and the Court considered the Levin plaintiffs were “well justified” in resorting to the Court. I do not accept that the Pascoes were similarly well-justified in resorting to the Court such that the Crown should contribute to their costs.

[24]      The Pascoes also say there has been unequal treatment of them in that the Minister seeks compulsory acquisition of their land but not the land  owned  by  Ngāti Tama. The Pascoes submit that it would be unfair (and therefore unlawful) for the Court to award costs against them when the Government “protected” Ngāti Tama against any adverse costs award.19 I disagree. I do not accept the Pascoes’ argument that there is some unfairness to them by comparison with the treatment of Ngāti Tama. An assurance was given not to compulsorily acquire land from Ngāti Tama because that land had been returned to Ngāti Tama as part of the relevant Treaty of Waitangi settlement. And ultimately, Ngāti Tama did agree to provide land for the Mt Messenger project.20 The position as to costs is therefore different to that of the Pascoes, where there has been no agreement reached as to acquisition of land.

[25]      The Pascoes further suggest that the Minister promoted a false sense of urgency about the proceedings, relying on the Supreme Court’s dismissal of the Minister’s application for an urgent hearing.21 They say that the Mt Messenger project has been

18     Deane v Attorney-General [1997] 2 NZLR 180.

19     Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203 at [157],

[438] and [483].

20     See Objection Appeal CIV-2024-443-036, above n 1, at [24]–[26].

21     Supreme Court leave to appeal decision, above n 14, at [8].

proceeded with, expending scarce public resources, before the final determination of whether the acquisition of their land was lawful. I do not consider that this argument is relevant to costs. As already mentioned, if any of the Pascoes’ appeals are successful, the question of costs may be further addressed.

[26]      As far as the Pascoes’ proposal that the Minister should be paying them costs, it will be apparent that I am not persuaded this is a correct approach in the circumstances. In any event, although the High Court Rules now allow litigants in person to recover costs of $500 per day,  that change did not come into force until     1 September 2024 and only applies to steps in litigation taken after that date.22 The hearing of these matters occurred between 15 and 17 July 2024 and at a further hearing on 12 August 2024. The steps taken by the Pascoes after 1 September 2024 were filing memoranda to update the Court on what they considered were important factual matters and seeking leave to file further submissions.23 Following delivery of the judgments for the proceedings, the Pascoes filed a memorandum as to costs. I do not consider that any of these steps taken by the Pascoes justify the Minister having to contribute to their costs.

[27]      As for quantum of costs, the Pascoes raise two concerns. First, the Pascoes submit that NZTA, not the Minister, incurred litigation costs. They say NZTA are meeting any costs associated with the Objection Appeal, therefore there is no evidence that the Minister expended or paid out any amount in expenses. Second, the Pascoes submit that the Minister has failed to provide invoices or proper proof that the Minister has incurred any costs and expenses at all.

[28]      Rule 14.2(1)(f) provides that “an award of costs should not exceed the costs incurred by the party claiming costs”. The Pascoes rely on the Court of Appeal decision in Joint Action Funding Ltd v Eichelbaum to submit that the Minister’s cost schedule does not meet the threshold which requires invoices rendered for legal services provided by a legal practitioner to be made out to (and paid by) the Minister.24 The Supreme Court concluded in McGuire v Secretary for Justice that the Court of

22     High Court Amendment Rules 2024, r 2. See also, Birnie v Outward Ltd [2024] NZHC 3218 at [10]; and Smartpay Ltd v Kumar [2024] NZHC 3578 at [6].

23     Memoranda dated 2 September 2024, 3 October 2024 and 9 December 2024.

24     Joint Action Funding Ltd v Eichelbaum, above n 7.

Appeal’s decision was wrongly decided, and in any event these cases are somewhat of a distraction from the matters properly at issue here where there is no lawyer acting in person.25

[29]      Although the rule does not require that the Minister’s costs have been the subject of invoices, following my enquiry, the Minister has confirmed that the invoices for legal costs paid or payable in relation to the Minister’s conduct of these proceedings exceed the scale costs claimed.26 As the Court of Appeal has observed, “[absent] any reason to the contrary, courts will rely on a lawyer’s obligations not to mislead the courts for their accurate statement of costs”.27 Further, any arrangement the Minister has with NZTA as to reimbursement of legal costs for the Mt Messenger project is irrelevant to the Pascoes’ liability as the unsuccessful party in the proceedings.

[30]      The Minister seeks allowance for second counsel. There is no rule governing when an allowance ought to be made.28 It is ultimately a matter for the Court to assess whether such an allowance is appropriate.29 I consider allowance for second counsel appropriate in this case given the complexity of the legal and factual scheme underlying the proceedings, and the manner in which they were conducted by the Pascoes.

[31]      Finally, the Pascoes suggest I am unable to determine costs for the steps taken in relation to the hearings before Grice and Isac JJ. In terms of r 14.9, their Honours are not conveniently available to determine costs for those hearings. The Minister also seeks costs on an ordinary 2B basis for those hearings. I am satisfied that it is appropriate to award such costs in favour of the Minister.

25 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [85]–[88] and [93].

26 Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-48, 14 October 2025 (Minute of McQueen J); and memorandum of counsel for the Minister dated 22 October 2025 (to which invoices for air fare disbursements were also attached). I note the Pascoes filed a further memorandum dated 28 October 2025 reiterating their view that copies of invoices for legal costs are required.

27 Mailley v Shaw [2025] NZCA 533 at [21], citing Harborow v Deliu [2025] NZCA 41 at [4(c)], citing Lawyers and Conveyancers Act 2006, s 4; and Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.1.

28 Northwest Developments Ltd v Zhang [2019] NZHC 2146 at [23].

29 Brady v Presbyterian Church of Aotearoa New Zealand [2013] NZHC 2300 at [2]; Latumbo v Pacific Auto Carrier (NZ) Ltd [2018] NZHC 3158 at [8].

Result

[32]      The Pascoes must pay the Minister’s scale costs for the proceedings on a    2B basis of $126,192 and disbursements of $1,488.11.

McQueen J

Solicitors:
Crown Law Office, Wellington for Respondent