R v Smith - [2018] NZHC 2188

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-488-0012

[2018] NZHC 2188

IN THE MATTER of the Cadastral Survey Act 2002, the Declaratory Judgments Act 1908 and the Judicature Amendment Act 1972

BETWEEN

PETER HOJSGAARD

Plaintiff

AND

THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND

First Defendant

ROBIN PATRICK BRILL

Second Defendant

Hearing: On the papers

Appearances:

P H Thorp and M Singh for Mr Hojsgaard

M Bryant and D Watson for the first defendant M C Harris for Mr Brill

Judgment:

24 August 2018

JUDGMENT OF JAGOSE J

[Costs]

This judgment is delivered by me on 24 August 2018 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
P H Thorp, Barrister, Auckland Glaister Ennor, Auckland (M Singh) Crown Law, Wellington (N Anderson)
Gilbert Walker, Auckland (M C Harris) D R Bates QC, Auckland

HOJSGAARD v THE CHIEF EXECUTIVE OF LAND INFORMATION NZ [2018] NZHC 2188 [24 August 2018]

Background

[1] Mr Hojsgaard’s substantive claim sought this Court’s quashing, and replacement, of the Chief Executive’s approval of Mr Brill’s survey of a boundary abutting Mr Hojsgaard’s property. Mr Hojsgaard contended the survey failed to take account of Mr Hojsgaard’s boundary allegedly being a right-lined water boundary.

[2] My judgment of 20 April 2018 directed the Chief Executive to reconsider and determine whether Mr Brill’s survey complied with the Rules for Cadastral Survey 2010, by reference to whether Mr Hojsgaard’s affected boundary was depicted in its survey by a right-lined water boundary.1 But that was “very much the rump of [Mr Hojsgaard’s] case”. I viewed his primary case “quite misguided”.2

[3] Ultimately, Mr Brill was successful in defeating Mr Hojsgaard’s ‘primary case’ for substantive declaratory relief, on which the Chief Executive abided; and Mr Hojsgaard was successful on its judicial review ‘rump’, on which Mr Brill abided.

Costs claims

[4] I reserved costs for determination on memoranda,3 but indicated my preliminary view:4

Mr Hojsgaard should be liable to pay 3B scale costs and disbursements to Mr Brill, and the Chief Executive liable for one-third of both 2B scale costs and disbursements to Mr Hojsgaard. The one-third is intended roughly to disqualify Mr Hojsgaard’s recovery from the Chief Executive of costs and disbursements incurred in relation to his primary case. My 3B categorisation for Mr Brill is to recognise the complexity of Mr Hojsgaard’s primary case required counsel with special skill and experience in the High Court. Mr Hojsgaard’s claim for review, however, was only of average complexity. I apprehend the steps reasonably required in the proceeding each took a normal amount of time for their performance.

1 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750 at [110].
2 At [112].
3 At [114].
4 At [113] (internal citations omitted).

[5]Instead:

(a)Mr Brill seeks more scrupulously differentiated category 3 scale costs (notably for band C in preparation of evidence and trial preparation) – uplifted by 50 per…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Smith

Details

AGLC: R v Smith [2018] NZHC 2188
Case: [2018] NZHC 2188
Decision Date: 24 August 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Peter Hojsgaard brought an action against the Chief Executive of Land Information New Zealand and Mr. Robin Patrick Brill, seeking to quash and replace the Chief Executive's approval of Mr. Brill's survey of a boundary abutting Mr. Hojsgaard's property. Mr. Hojsgaard argued that the survey failed to take account of his boundary allegedly being a right-lined water boundary. The court was required to determine the legal issues surrounding the approval of the survey, the obligations of the Chief Executive under the Cadastral Survey Act 2002, and the costs associated with the proceedings.

The court held that Mr. Brill was successful in defeating Mr. Hojsgaard's primary case for substantive declaratory relief, which was based on the claim that the survey did not comply with the Rules for Cadastral Survey 2010. However, Mr. Hojsgaard was successful on the judicial review aspect of his claim, which focused on the Chief Executive's failure to take into account a mandatory relevant consideration. The court determined that the Chief Executive should contribute one-third of Mr. Hojsgaard's costs and disbursements related to the successful review claim.

Regarding costs, the court held that Mr. Brill was entitled to costs at the 3B scale for the complexity of the primary case, and Mr. Hojsgaard was liable to pay 3B scale costs and disbursements to Mr. Brill. The court also held that the Chief Executive should pay one-third of Mr. Hojsgaard's 2B scale costs and disbursements related to the successful review claim. The court ordered Mr. Hojsgaard to pay Mr. Brill $108,075 in costs and $150,000 in disbursements, plus additional costs on the costs application and opposition to the stay application. The Chief Executive was ordered to pay Mr. Hojsgaard one-third of the costs and disbursements calculated by the Chief Executive, subject to comments on GST at [21] above.

Orders