Proprietors of Potikirua Block Incorporation v Te Kani

[2021] NZHC 81

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV 2013-416-153

[2021] NZHC 81

BETWEEN	THE PROPRIETORS OF POTIKIRUA BLOCK INCORPORATION Plaintiff
AND	RENATA TE KANI as administrator of the estate of WAMOANA TE KANI Defendant

On the papers
Judgment:	3 February 2021

JUDGMENT OF MALLON J

(Costs)

[1]    I  refer  to  my  judgments  dated  5  December  2019,  1  April  2020  and   22 December 2020.1 The defendant seeks costs.  The plaintiff accepts the defendant is entitled to costs as the successful party at trial. The issue is what are the appropriate cost category and band and whether any uplift is appropriate.

[2]    The defendant seeks costs on a category 3C basis. The plaintiff submits category 2B is appropriate.

[3]    I agree with the plaintiff that category 2 is the appropriate one. Category 2 was agreed by the parties when they filed a joint memorandum during the case management phase of the proceeding. That category applies to proceedings of average complexity requiring counsel of skill and experience considered average in the High

1      The Proprietors of Potikirua Block Incorporation v Te Kani [2019] NZHC 3200; The Proprietors of Potikirua Block Incorporation v Te Kani [2020] NZHC 668; and The Proprietors of Potikirua Block Incorporation v Te Kani [2020] NZHC 3525.

THE PROPRIETORS OF POTIKIRUA BLOCK INCORPORATION v TE KANI [2021] NZHC 81 [3 February 2021]

Court. The fact that the proceeding related to events many years ago did not make it more complex – it simply meant that relevant documents had to be found, some documents were no longer available and the recollections of surviving witnesses had dimmed. The legal issues involved were relatively difficult, particularly because the relevant legislation had “suffered from the ebb and flow of legislative attention and policy changes” with major amendments “locked forever in the amending legislation”.2 However,  the  defendant  largely  left  it  to  the  plaintiff’s  counsel, Mr Koning, to assist the Court with navigating through that legislation as he had particular   experience   with   that    legislation.    Intending   no   disrespect   to     Mr Weatherhead, who represented his client well, his side of the argument did not require counsel with special skill and experience in the High Court.

[4]    I also agree with the plaintiff that Band B represents the reasonable time for each step in the proceeding. As noted, the main complication was the difficult legislation. The bundle of documents, the number of witnesses and the scope of their evidence were all relatively confined. The submissions were also concise.

[5]    The only step that took longer than it should have related to the remedy to be granted. That was capable of being dealt with by consent (in accordance with the approach I had indicated in my 5 December 2019 judgment), with referral back to the Court to endorse and potentially declare what had been agreed. It was clear that the Incorporation was not entitled to register all of Renata’s shares in its name. The only question was the mechanism by which the Incorporation could correct the position. I consider, however, that this is addressed because the defendant will be entitled to claim on a 2B basis for the additional sets of submissions that were necessary after the      5 December 2019 judgment.

[6]    The defendant submits that an uplift of 50 per cent is appropriate because the plaintiff ignored the defendant’s invitation to negotiate on the appropriate share allocation. The defendant says the plaintiff’s assets enabled it to pursue its claim without pausing to consider the likely outcome. Further, on 17 February 2020 (before the next two rounds of submissions and judgments became necessary) the defendant

2 See [2019] NZHC 3200, above n 1, at [117] (quoting from the Māori Affairs Bill (124-1) (explanatory note) and [118].

made a “without prejudice save as to costs” offer that accords with what I ultimately declared in my 22 December 2020 judgment.

[7]    In my view the defendant’s earlier attempts to negotiate a solution do not warrant an uplift. As the plaintiff submits, the core claim it brought was for return of the land to communal ownership and there was a cultural interest for the Incorporation to pursue legal avenues to have the land returned. Further, its position was vindicated to some extent in that the Court found that the transfer had not complied with the Māori land legislation in several respects and the consideration for the transfer had never been paid.

[8]    As to the 17 February 2020 offer, while it would have been better if the plaintiff had indicated its agreement with it, subject to investigating the appropriate legal mechanism to regularise matters, ultimately I consider this does not warrant an uplift. This is because I accept that finding the appropriate mechanism was not straightforward due to the complex legislative regime. Eventually, the plaintiff identified a mechanism which enabled it to correct the register. Further, the allowances for the additional submissions that followed my 5 December 2019 judgment recognise the costs to the defendant after that judgment by the approach the plaintiff took.

[9]I make a costs order on a 2B basis in favour of the defendant accordingly.

Mallon J