Pascoe v Ng�ti Tama Custodian Trustee Limited

[2023] NZHC 1787

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2023-443-005

[2023] NZHC 1787

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Applicants

AND

NGĀTI TAMA CUSTODIAN TRUSTEE LIMITED

First Respondent

WAKA KOTAHI
Second Respondent

MINISTER OF LAND INFORMATION

Third Respondent

Hearing:

On the papers

Counsel:

M J Utting for Applicants

V N Morrison-Shaw for First Respondent
J M Prebble and J W Henderson for Second and Third Respondents

Judgment:

10 July 2023

JUDGMENT OF GRICE J (COSTS)

Introduction

[1]    Mr and Mrs Pascoe sought orders preventing Waka Kotahi from restricting the Pascoes’ stock from accessing and grazing on land owned  by  the  Crown  and  Ngāti Tama adjoining Mr and Mrs Pascoe’s farm (the grazing land) in the Mangapēpeke Valley. The farm (known as the Valley Farm) and the environment which they have created there is very important to the Pascoes. The Pascoe whānau has owned and occupied the Mangapēpeke Valley Farm and homestead for nearly

PASCOE v NGATI TAMA CUSTODIAN TRUSTEE LIMITED [2023] NZHC 1787 [10 July 2023]

70 years. Mrs Pascoe belongs to Poutama, and the Mangapēpeke Valley is ancestral land. The Pascoe whānau, including their children and mokopuna, consider themselves Poutama kaitiaki and stewards for the Mangapēpeke Valley, maintaining rights and core beliefs on behalf of the wider iwi.

[2]    That application was dismissed in a judgment of this Court dated 17 April 2023.1 First it was not urgent in terms of r 7.53(2) of the High Court Rules 2016. Secondly, even if proceedings had been commenced, which they had not been, the applicant would fail due to lack of a serious question to be tried. In addition, the balance of convenience and the overall justice of the situation favour not granting an interim injunction.

Costs

[3]    In that judgment I indicated that there was no reason why costs should not follow the event on a 2B basis. I indicated that if counsel were unable to agree on the award of costs an application for costs together with supporting submissions should be filed on or before five days from the date of this judgment. Any response was to be filed on or before a further five days and any reply within a further three days.

[4]    The first, second and third respondents then applied seeking scale costs on a  2 B basis as the successful parties. No response has been received by the applicants to date, well outside the timetable.

[5]    The respondents seek $8460.45 for the first respondent and $9894.65 for Waka Kotahi New Zealand Transport Agency and the Minister of Land Information (the second and third Respondents) jointly.

[6]    I accept that the first respondent was required to take its own steps to defend the application and make separate submissions. The second and third respondents however were able to cooperate in their defence and submissions. It is therefore appropriate that the first respondent receives a separate allocation of costs and the second and third respondents a joint allocation of costs.

1      Pascoe v Ngāti Tama Custodian Trustee Limited [2023] NZHC 805.

[7]    Costs generally follow the event. They should reflect the complexity and reasonable time taken in proceedings of their kind. In view of the fact the applicants have filed no submissions I can see no reason why that principle should not be applied here.

[8]    The costs have been calculated according to category 2 and B – the categorisation and banding which in the judgment I indicated might have been appropriate subject to submissions. No submissions the contrary have been received. In fact, no submissions at all have been made by the applicants. In those circumstances it is appropriate that I make the costs award as sought by the first defendant and the second and third respondents jointly. The applicant has taken no steps to contest the costs claim. The costs claimed appear reasonable based on the basis claimed, being 2B. The matter was not entirely straightforward but not complex therefore the 2B allocation is appropriate.

[9]    Accordingly, costs and disbursements are awarded in favour of the first respondent in terms of its schedule totalling $8460.45. Costs are awarded in favour of the second and third respondents in the sum of $9894.65.

Grice J

Solicitors:

Thomson O’Neil & Co – Eltham Branch, South Taranaki Vicki Morrison-Shaw Barrister, Rodney

Jeremy Prebble Barrister, Wellington