Point Chevalier Social Enterprise Trust v Auckland Council

[2023] NZHC 1688

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000274

[2023] NZHC 1688

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for Judicial Review

BETWEEN

POINT CHEVALIER SOCIAL ENTERPRISE TRUST

Applicant

AND

AUCKLAND COUNCIL

First Respondent

MARUTŪĀHU RŌPŪ and the WAIOHUA-TĀMAKI RŌPŪ

Second Respondents

Hearing:

[On the Papers]

Appearances:

S J Ryan and S A Kilgour for Applicant R H Ashton for Ockham Group Ltd

S Woodhead for Expert Consenting Panel

Judgment:

3 July 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 3 July 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:

S J Ryan, Auckland

S A Kilgour, Auckland Brookfields, Auckland

Luke Cunningham and Clere, Wellington

POINT CHEVALIER SOCIAL ENTERPRISE TRUST v AUCKLAND COUNCIL [2023] NZHC 1688 [3 July 2023]

[1]                 In my judgment dated 17 May 2023, I declined the application by the applicant (Trust) to join Ockham Ltd and the Expert Consenting Panel to the proceeding.1 As Ockham had successfully opposed the application for joinder, it was entitled to an award of costs.2

[2]                 The parties have been unable to agree on quantum. Ockham seeks an award of $20,434.50. That sum has been calculated on the basis of scale costs of $13,623 plus a 50 per cent uplift. Ockham also seeks disbursements and expert witness fees of

$3,630.65 plus GST.

[3]                 The applicant accepts that costs should be calculated on a schedule 2B basis. The calculation of scale costs totalling $13,623 is accepted. However, it opposes the 50 per cent uplift, and disputes that expert witness fees of witnesses who were not called in the proceeding are properly recoverable.

Should increased costs be awarded?

[4]                 Ockham’s claim for increased costs  is  made  under  r 14.6(3)(b)  of  the  High Court Rules 2016. That rule provides that increased costs may be ordered if:

(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by:

…

(ii)Taking or pursuing an unnecessary step or an argument that lacks merit;

(iii)Failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument.

…

[5]                 Ockham points to correspondence between the solicitors for Ockham and the Trust that it says put the Trust on notice that RC 2 was not dependent on the Carrington backbone consent. In light of that correspondence, Ockham says there was no reasonable justification for claiming that RC 2 may be affected by any road alignment. Nevertheless, the Trust pursued its application for joinder, putting Ockham to needless expense in opposing it.

1      Point Chevalier Social Enterprise Trust v Auckland Council [2023] NZHC 1174.

2 At [50].

[6]                 I am not satisfied that the grounds relied on to justify an award of increased costs are made out in this case. The application was properly brought and was in accordance with the principles relevant to joinder applications in judicial review.

[7]                 While the Trust’s claims ultimately failed, that does not mean the claims were without merit, nor that the Trust pursued an unnecessary step in the pursuit of its application. Nor can it be said that the Trust failed, without reasonable justification, to accept Ockham’s position. I accept counsel for the Trust’s submission that the circumstances do not suggest some obdurate position or that the applicant was disengaged from exploring practical alternatives. The Trust did not contribute unnecessarily to the time and expense of the proceeding.

[8]                 This is a case where costs should follow the event. I decline to award increased costs.

Should the expert fees be allowed?

[9]                 The claim for expert witness fees is made under r 14.12 of the High Court Rules.

[10]             I am satisfied that the fees were properly and reasonably incurred. The evidence was directed towards a key issue in the application which was the impact on RC 2 of any realignment of the road. The evidence also responded to evidence called on behalf of the Trust. The fees were reasonable in amount and were not disproportionate to the issues in the proceeding.

[11]The claim for expert fees is allowed.

Result

[12]             Accordingly, I award costs to Ockham Group Ltd in the sum of $13,623, plus disbursements in the sum of $3,630.65 plus GST.

Edwards J