Pascoe v Minister for Land Information

[2024] NZHC 1169

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2024-443-8

[2024] NZHC 1169

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Applicants

AND

ENVIRONMENT COURT

First Respondent

MINISTER FOR LAND INFORMATION

Second Respondent

CIV-2024-485-48

UNDER

the Public Works Act 1981 and the Resource Management Act 1991

IN THE MATTER OF

An appeal under Section 299 of the Resource Management Act 1991

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Appellants

AND

MINISTER FOR LAND INFORMATION

Respondent

Hearing:

On the papers

Counsel:

Applicants in person

A J Vincent for First Respondent in CIV-2024-443-8

K F Gaskell and E S Harris for Second Respondent in CIV 2024 443-8 and for Respondent in CIV-2024-485-48

Judgment:

10 May 2024

JUDGMENT OF O’GORMAN J

PASCOE v ENVIRONMENT COURT [2024] NZHC 1169 [10 May 2024]

[1]                  On 22 April 2024, I delivered a judgment in favour of the Minister for Land Information (Minister), declining the applications of Mr and Mrs Pascoe seeking interim relief and a stay in proceedings CIV-2024-443-8 and CIV-2024-485-48. Both those proceedings in turn relate to an Environment Court proceeding (EMV-2021-AKL-116).

[2]                  In accordance with my timetable directions, the parties filed memoranda on the issue of costs and those have been referred to me for determination.

Party submissions

[3]                  The Minister seeks costs and disbursements in the total sum of $8,556.13. This consists of four steps: filing documents in opposition (x 2) to each application by the Pascoes, preparing submissions and the bundle for hearing, and appearing at the hearing.

[4]                  The Pascoes have filed a memorandum addressing post-judgment procedural and substantive issues (which are not for my determination), but also asking that my directions as to costs “be amended and the party to receive costs reversed”.

Legal principles

[5]                  The Court has a general discretion to award  costs  under  r  14.1  of  the  High Court Rules 2016, but r 14.2 provides a clear statement of the principles to be applied in most cases.

(a)Under r 14.2(1)(a), the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

(b)Under r 14.2(1)(b), an award of costs should reflect the complexity and significance of the proceeding. For those purposes, r 14.3 provides for three categories of proceeding. Category 2 applies to proceedings of average complexity requiring counsel of skill and experience considered average in the High Court. Rule 14.4 provides that the

appropriate daily recovery rates are specified in sch 2: $2,390 for Category 2 proceedings.

(c)Rule 14.2(1)(c) provides that costs should generally be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application. For those purposes, r 14.5 specifies that a reasonable time is set out in sch 3 for each step, or a reasonable time should be determined by analogy. This is done by reference to whether the step falls within band A, B or C. Band B applies if a normal amount of time is considered reasonable.

(d)Rule 14.2(1)(f) provides that an award of costs should not exceed the actual costs incurred by the party.

[6]                  The integrity of the scale, with its associated value of predictability and certainty, is not to be lightly discarded.1

[7]                  Rule 14.8 of the High Court Rules creates a presumption that costs on opposed interlocutory applications are to be fixed by the court when the application is determined. In Chapman v Badon Ltd the Court of Appeal said:2

[12]… Apart from applications for summary judgment, the general approach to costs in respect of interlocutory applications is that they are dealt with at the time the applications are determined rather than being held over until the outcome of the proceedings is known. This reflects the fact that the merits of particular applications and the merits of the substantive proceedings are different matters.

Application to fact

[8]                  The Minister’s calculations have been made on a Category 2, Band B basis. That is appropriate because the proceedings are of average complexity, and a normal amount of time is reasonable for each of the steps taken.

1      Bradbury v Westpac Banking Corporation (2008) 18 PRNZ 859 at [9]; upheld in Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400.

2      Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 (footnote omitted).

[9]                  Nothing raised in the memorandum of the Pascoes justifies any departure from scale costs in this case, or a costs reversal.

(a)The Minister was successful, therefore is entitled to costs on those applications, which have now been determined.

(b)The merits of these applications and the merits of the substantive disputes are different matters.

(c)The four items claimed on behalf of the Minister are entirely appropriate and were genuinely incurred.

(d)The filing fees are recoverable disbursements.

[10]Accordingly, I award costs and disbursements to the Minister, in the sum of

$8,556.13 as calculated in the schedule.

O’Gorman J

Solicitors:

Crown Law Office, Wellington