Poutama Kaitiaki Charitable Trust v HeritageNew Zealand Pouhere Taonga
[2022] NZHC 3509
•19 December 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2021-443-61
[2022] NZHC 3509
UNDER the Heritage New Zealand Pouhere Taonga Act 2014 IN THE MATTER OF
an appeal under s 299 of the Resource Management Act 1991 against a decision of the Environment Court upholding the grant of an archaeological authority to First Gas Limited for the removal of a section of pipeline at Clifton Road, Tongapōrutu
BETWEEN
POUTAMA KAITIAKI CHARITABLE TRUST
Appellant
AND
HERITAGE NEW ZEALAND POUHERE TAONGA
Respondent
FIRST GAS LIMITED
Section 301 of Resource Management Act party
On the papers: Counsel:
M Gibbs advocate (by leave) for Appellant V N Morrison-Shaw for Respondent
B J Matheson for First Gas Limited
Judgment:
19 December 2022
JUDGMENT OF CHURCHMAN J
[Costs]
POUTAMA KAITIAKI CHARITABLE TRUST v HERITAGE NEW ZEALAND POUHERE TAONGA [COSTS] [2022] NZHC 3509 [19 December 2022]
[1] On 19 October 2022, I dismissed an appeal by Poutama Kaitiaki Charitable Trust (Poutama) against a decision of the Environment Court.1
[2] In that decision, I directed that the respondent, (Heritage NZ), and s 301 party (First Gas) file submissions on costs within 14 days.2 Poutama were to file submissions in reply within a further 14 days. Heritage NZ and First Gas filed submissions on 2 November 2022. Heritage NZ seeks costs of $18,153.80 including disbursements. First Gas seeks costs of $12,308.50. Poutama did not file submissions in reply.
[3] In a minute of 24 November 2022, I noted that Poutama had not filed submissions on costs, and directed that they file submissions within a further five working days, or I would determine costs in their absence. Poutama have not filed costs submissions. Accordingly, I now deal with the issue of costs.
The applications
Heritage NZ
[4] Ms Morrison-Shaw submits that this proceeding is one which satisfies the criteria for an award of increased and/or indemnity costs, on the basis that the appeal was “wholly misconceived”.3 She says that the approach taken by Poutama increased the cost of defending the appeal, by raising matters that went beyond the scope of an appeal on a question of law. She says that Heritage NZ made two settlement offers to Poutama, on 25 July 2022, and 21 October 2022. She says:
12.Heritage NZ made two settlement offers to Poutama:
(a)the first on 25 July 2022 where Heritage NZ offered (on a without prejudice save as to costs basis) to forego an existing Environment Court cost award and not seek further costs against Poutama (including in this Court) if Poutama withdrew its appeal in this Court and a separate appeal in the Environment Court which sought to relitigate Poutama’s status, and agreed not to relodge further appeals on that issue; and
1 Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2022] NZHC 2713.
2 At [47].
3 At [29].
(b)the second on 21 October 2022 where Heritage NZ again offered (this time on an open basis) to forego seeking costs in this Court and in the Environment Court if the Environment Court appeal raising the same issue was withdrawn.
[5] Ms Morrison-Shaw submits that Heritage NZ acted reasonably in its conduct of the proceedings and took steps to assist Poutama, which was represented by lay litigants. She seeks 50 per cent of Heritage NZ’s actual costs. She says also that the sum of security for costs that Poutama was required to pay ($4,780), should be paid out to Heritage NZ and First Gas in equal proportion, in partial satisfaction of any cost awards.
First Gas
[6] First Gas seeks costs of $12,308.50. Mr Matheson submits that costs should be awarded as:
(a)the appeal was unsuccessful;
(b)the appeal raised a number of grounds which were ultimately irrelevant; but included potentially complex questions of law/fact, including the definition of tangata whenua and the determination of mana whenua;
(c)it was appropriate for First Gas to participate as the archaeological authority in issue was granted to it; and
(d)the submissions on behalf of First Gas focused on specific points relevant to it, and did not duplicate the submissions on behalf of Heritage NZ.
[7] Mr Matheson agrees with Ms Morrison-Shaw that the sum of security for costs paid by Poutama should be equally distributed to Heritage NZ and First Gas.
Discussion
[8] While I have not had the benefit of costs submissions by Poutama, I accept the submissions of both Heritage NZ and First Gas. It is appropriate that costs be awarded to them in this proceeding.
[9] I am also satisfied that an award of increased costs to Heritage NZ is appropriate in the circumstances, but only on the basis that the appeal itself lacked merit, and went far beyond the limited matters that may be addressed in an appeal on a question of law. Increased costs may be awarded where there has been a failure by the party paying costs to act reasonably.4
[10] Rule 14.6(3)(b)(ii) of the High Court Rules 2016 provides that increased costs may be awarded where the party opposing costs has contributed unnecessarily to the time or expense of the proceeding by taking or pursuing an unnecessary step or an argument that lacks merit. On that basis alone, I am satisfied that an award of increased costs is appropriate, given the way in which Poutama conducted the appeal, and the fact that it sought to raise a significant number of factual matters. Some of those factual matters had already been the subject of judgments by this Court and the Environment Court and are unable to be inquired into in an appeal on a question of law.
[11] I note that Ms Morrison-Shaw has calculated the costs award sought by Heritage NZ on an ‘actual costs’ basis, which is typically used where a party seeks indemnity costs, rather than increased costs. However, I note that she also provided a schedule of costs calculated on a 2B scale costs basis, which totals $12,308.50. The
$18,153.80 sought by Heritage NZ can also be described as their scale costs increased by approximately 50 per cent. As such, I am of the view that the way in which Ms Morrison-Shaw has calculated the costs sought by Heritage NZ is appropriate and within range, notwithstanding its calculation by reference to actual costs.
4 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400.
[12] For clarity, I consider that the settlement offers proposed by Heritage NZ do not of themselves justify an award of increased costs, because those offers appear to have been contingent on the discontinuance of litigation other than this proceeding.
Result
[13] I award costs to Heritage NZ in the sum of $18,153.80. I award costs to First Gas in the sum of $12,308.50. The sum that Poutama paid as security for costs is to be distributed equally to Heritage NZ and First Gas, in partial satisfaction of their costs awards. Accordingly, $2,390 may be deducted from each of the costs awards, leaving
$15,763.80 to Heritage NZ, and $9,918.50 to First Gas.
Churchman J
Solicitors:
Atkins Holm Majurey, Auckland for Respondent
Govett Quilliam, New Plymouth for FGL, a s 301 Resource Management Act party
cc: M Gibbs
V N Morrison-Shaw B J Matheson