Rayonier New Zealand Limited v Canterbury Regional Council
[2025] NZHC 2457
•28 August 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-570
[2025] NZHC 2457
BETWEEN RAYONIER NEW ZEALAND LIMITED and PORT BLAKELY LIMITED
AppellantsAND
CANTERBURY REGIONAL COUNCIL
Respondent
AND
TIMARU DISTRICT COUNCIL
Interested Party
Hearing: On the papers Counsel:
A F Pilditch KC for the Appellants
P A C Maw and K T Dickson for the Respondent G C Hamilton for the Timaru District Council
Judgment:
28 August 2025
JUDGMENT OF HARLAND J
(as to costs)
Introduction
[1] This proceeding challenged proposed changes to the sediment discharge rule and water yield rule in Plan Change 7 to the Canterbury Land and Water Regional Plan (PC7). I issued my interim substantive judgment allowing the appeal on 6 June 2024.1 In it, I determined the hearing panel charged by the Canterbury Regional Council (the Regional Council) with making recommendations on the plan had made errors of law. I next issued my judgment as to relief on 20 December 2024, amending the text of
1 Rayonier New Zealand Ltd v Canterbury Regional Council [2024] NZHC 1478.
RAYONIER NEW ZEALAND LTD v CANTERBURY REGIONAL COUNCIL [2025] NZHC 2457 [28 August 2025]
PC7 in several ways under r 10.19(1)(a) of the High Court Rules 2016 (HCR).2 In the relief judgment, I reserved the issue of costs and directed that the parties file memoranda about costs in the event they could not agree.3
[2] The parties have not been able to reach agreement about costs and have filed memoranda outlining their respective positions. Given their success, the appellants - Rayonier New Zealand Ltd and Port Blakely Ltd (collectively referred to as Rayonier)
- seek an award of costs against the Regional Council of $100,721.05 (being legal costs and disbursements) calculated principally on a category 3 basis or, in the alternative, the same figure reached on a category 2 basis with a substantial uplift. The application is opposed by both the Regional Council and the Timaru District Council (the District Council). They submit costs on the substantive hearing should be awarded at a lower rate than that sought by Rayonier (at category 2 with no uplift) and should not be awarded for the relief hearing.
[3] I have decided to award costs on a category 2, band B basis, with an uplift of 10 per cent. I have also decided an appropriate apportionment between the Regional Council and the District Council is 70/30 respectively. This is less than those claimed by Rayonier but more than those advanced as appropriate by the Regional and District Councils.
Legal principles
[4] The legal principles that apply to costs generally are not in dispute. Costs are ultimately at the discretion of the Court4 and the primary principle is that the unsuccessful party should pay costs to the successful party.5
[5] An award of costs should reflect the complexity and significance of the proceeding with the appropriate daily recovery rate applied to the reasonable time for each step reasonably required in relation to the proceeding.6
2 Rayonier New Zealand Ltd v Canterbury Regional Council [2024] NZHC 4001.
3 At [21].
4 High Court Rules 2016, r 14.1.
5 Rule 14.2(1)(a).
6 Rules 14.2(1)(b) and (c).
[6] Importantly, a reasonable time for each step is not dependent on the skill or experience of the solicitor or counsel involved, or on the time actually spent by either or both.7 Instead, a costs award reimburses the successful party with a notional and objective amount of costs which are deemed reasonable in all the circumstances, rather than the costs actually incurred by the party claiming costs.8
[7] In this case, the categorisation of the proceedings, costs for relief steps whether an uplift should apply, and apportionment between the Regional Council and the District Council are in issue.
What is the appropriate categorisation for costs?
[8] Rayonier submits the proceedings should be assigned category 3, whereas the Regional and District Councils submit category 2 is more appropriate.
[9] Proceedings must be classified as falling within one of three categories.9 Category 1 proceedings are straightforward and able to be conducted by counsel considered junior in the High Court. Category 2 proceedings are those of average complexity requiring council of skill and experience considered average in the High Court. Category 3 proceedings are those which, due to their complexity or significance, require counsel to have special skill and experience in the High Court.
[10] Early in the proceedings, a joint memorandum was filed agreeing to the costs categorisation under r 14.3 of the HCR being category 2.10 However, the Court did not settle the categorisation because the conference at which this matter was to be discussed did not proceed. Regardless, at that stage the parties had agreed that the appeal involved issues at a level of complexity covered by category 2.
[11] Rayonier now submits that the costs categorisations should be changed to category 3. A re-categorisation of this type is only permitted by the rules if there are
7 Rule 14.2(1)(e).
8 Mansfield Drycleaners v Quinny’s Drycleaning (Dentice Drycleaners Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [29].
9 High Court Rules, r 14.3.
10 Joint memorandum dated 2 March 2022.
special reasons to do so.11 This limitation sets a high bar; the reasons for the change must be "special".
[12] In Delegat v Norman, Woolford J summarised case law dealing with special reasons as follows:12
In J v J, “special reasons” requiring re-categorisation for a later part of the proceeding were that by the time of trial preparation, complex factual and legal issues had arisen which required extensive evidence and complex argument, and continuation of the earlier categorisation would have been “grossly unfair” to the plaintiff. It was not a case where the earlier categorisation would have influenced parties’ conduct. In Carlin Enterprises Ltd v Fright Aubrey Ltd (in Liq), “special reasons” were that an Associate Judge categorised the proceedings at a time when the parties had wanted the categorisation deferred so that categorisation never received proper consideration by the parties. The categorisation had not affected the conduct of the parties to the litigation, and the proceedings could not be accurately described as being of “average complexity”. In Ballance Agri-Nutrients Ltd v Ravensdown Fertiliser Co-operative Ltd, “special reasons” were that on appeal the parties adduced a large amount of evidence that had been earlier unanticipated along with new issues relating to that further evidence.
[13] Mr Pilditch KC, for Rayonier, submitted that special reasons are evident with reference to the length of the submissions filed, the interim judgment (dealing with the substance of the appeal) and the issues that arose when considering what relief was appropriate. These matters, he submitted, means it would be grossly unfair for category 2 rather than category 3 to be assigned.
[14] Mr Maw for the Regional Council submitted that nothing arose during preparation for, or during the course of, the hearing that gives rise to special reasons warranting a re-categorisation. Ms Hamilton for the District Council submitted that none of the circumstances identified in Delegat v Norman apply here and Rayonier's submissions on this point do not go far enough to discharge their obligation to demonstrate category three should apply.
[15] I agree with Mr Maw and Ms Hamilton that the proceedings do not justify a departure from the agreed categorisation outlined in the joint memorandum. In my
11 High Court Rules, r 14.3(2).
12 Delegat v Norman [2014] NZHC 1099 at [18], citing J v J [2013] NZHC 1822; Carlin Enterprises Ltd v Fright Aubrey Ltd (in Liq) HC Christchurch CIV-2007-409-2030, 27 October 2011; Balance Agri-Nutrients Ltd v Ravensdown Fertiliser Co-operative Ltd HC Auckland CIV-2009-404-2171, 11 August 2011.
view, this proceeding involved average complexity, requiring counsel of skill and experience considered average in the High Court. Although the appeal required a considerable amount of written material to be considered, the legal issues concerned the interpretation of documents prepared under the Resource Management Act 1991 (RMA) during a plan change process which could be anticipated or expected by an experienced resource management practitioner. As has been previously held, knowledge of a specialist field or practice does not, of itself, affect the categorisation of the proceeding.13
[16]I also agree with Mallon J that:14
… the nature of the case was known at the outset. Quite the level of work that would be involved may not have been anticipated, but that is something better considered under the bands than in changing the category from that agreed upon at an early stage. That is for two reasons. First, it better reflects the nature of the complexity. That is, it would have required more work on some of the steps, especially if counsel did not have familiarity with the operation of airshows and warbird aircraft.
[17] In addition, the Regional Council submitted that authority from the Court of Appeal suggests it is inappropriate to seek to change the categorisation after the substantive hearing.15 There is merit in this submission. While commentary has suggested a late re-categorisation of this type could be entertained if there are good reasons and no prejudice arises from the adjustment, this is not the case here.16 Rayonier is too late in seeking a departure from the categorisation agreed between the parties in the joint memorandum. The fact the agreement was not accepted by the Court because the scheduled conference did not take place is, in my view, of no moment. If during preparation Rayonier considered a different categorisation was required, it could have sought leave to have the matter dealt with by the Court before the trial.
13 Dovey Aviation Consulting Ltd v Attorney-General [2021] NZHC 1224 at [7] citing McIlroy v New Zealand Act Party CIV-2003-485-174 at [8].
14 Dovey Aviation Consulting Ltd v Attorney-General, above n 13, at [8].
15 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZCA 544 at [30].
16 David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at 25 and 26.
[18] I am not persuaded that Rayonier has demonstrated special reasons for changing the category. The classification of the proceedings as category 2 under r 14.3(1) of the HCR was and remains appropriate.
What is the appropriate daily recovery rate?
[19] Rayonier submitted that band C is the correct band for the substantive steps taken but adopt band B for the three case conferences. The Regional and District Councils submitted all steps should adopt band B.
[20] Under r 14.2(1)(c) of the HCR, costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding. Under r 14.5, a reasonable time for a step is assessed by reference to sch 3 and what is a reasonable time for a step under r 14.5(1) must be made by reference to bands A-C outlined in that rule. Band A is appropriate where a comparatively small amount of time is considered reasonable, band B applies if a normal amount of time is considered reasonable and band C applies if a comparatively large amount of time for the particular step is considered reasonable.
[21] The substantive hearing took two days. I agree with Ms Hamilton that the substantive steps in the proceeding (including the case conferences) were within the scope of what would ordinarily be expected in an appeal proceeding concerning errors of law arising from a first instance decision in relation to a regional plan.
[22]For this reason, I find the scale costs should be based for all steps on band B.
[23] Rayonier submitted costs for second counsel costs should be allowed. The Regional and District Councils did not oppose this. I agree this is appropriate and approve such costs being claimed.
Costs for relief steps
[24] Rayonier has calculated its costs inclusive of the relief steps of this proceeding. This amounts to $2,390.00 on a band 2B basis. The Regional and District Councils submitted costs for this step should lie where they fall.
[25] The Regional and District Councils submitted the ultimate outcome reached as a result of the relief judgment represented a compromise between the various positions, so that no party was ultimately more successful than the other. Mr Maw submitted the Regional Council's approach to relief was principled and based on an orthodox application of the law.
[26] Rayonier did not address this issue directly but submitted the Regional Council's failure to engage in settlement justifies an uplift (which is discussed below). Before that can be assessed, I must first determine whether this step should be included in the costs award.
[27] Rayonier submitted it was put to considerable cost because of the Regional Council's approach to settling the relief, which the Regional Council firmly refutes. This is discussed in more detail below but, at this stage, I only need to consider whether or not costs should lie where they fall for this step.
[28] In my minute of 16 August 2024, I acknowledged that the question of what relief should follow on from the interim judgment was far from straightforward. I also referred in my judgment on relief to the diverging views as to whether the usual cause of action for matters involving changes to planning documents should be remitted back to the first instance decision-maker. The parties did not agree on the approach to be taken, so a hearing was allocated. At the hearing, after considering the affidavit of Mr Wyeth filed on behalf of Rayonier, I enquired of counsel, if the remaining issues were simply a matter of drafting to be undertaken by planners, whether it might save time and cost for attempts to be made to settle the wording by agreement.
[29] After taking instructions, Mr Maw advised that the Regional Council was prepared to engage in such a process, and he reminded me that it was not necessarily
the wording of the particular rules that might be problematic but consequential changes that might also need to be made to other parts of the plan.
[30] On balance, I am persuaded that costs for relief steps ought to lie where they fall. The Regional Council's initial approach to relief was orthodox but, on the other hand, the approach taken by Rayonier was constructive. Ultimately, with a steer from the Court, both parties managed to reach the agreed position, which I subsequently endorsed.
Is an uplift in scale costs justified?
[31] As I have concluded category 2 should be applied, I now consider Mr Pilditch's submission that, if category 2 is applied, an uplift is warranted. The Regional and District Councils submitted an uplift is not appropriate and refer to authorities which they say suggest a reduction in the costs payable is appropriate, with the District Council suggesting a reduction of 30 per cent.
[32]Rule 14.6 of the HCR is relevant to this submission. It provides:
14.6 Increased costs and indemnity costs
(1) Despite rules 14.2 to 14.5, the court may make an order—
(a)increasing costs otherwise payable under those rules (increased costs); or
(b)that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs).
(2) The court may make the order at any stage of a proceeding and in relation to any step in it.
(3) The court may order a party to pay increased costs if—
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or with a direction of the court; or
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or
(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
[33] Rayonier submitted that increased costs are justified because the proceeding was of general importance, the Regional and District Councils pursued arguments that were without merit and failed to engage in settlement discussions.
Rule 14.6(3)(c) - general importance and public interest
[34] The appeal addressed the relationship between the relatively new National Environmental Standards for Commercial Forestry (NES-CF) and regional plans. It also addressed the requirements imposed by the RMA on councils seeking to introduce greater stringency.
[35] Counsel for Rayonier submitted the judgment provides important guidance and clarity not only to those in the Canterbury region but nationwide due to the issues of principle addressed in it. In other words, it is not limited to the parties to it and it was therefore reasonable and necessary for Rayonier to bring the proceedings.17 The District Council agreed, submitting the judgment will assist other decision-makers to understand the evidence required to support ss 32 and 32AA assessments and their obligations in giving reasons for their decisions.
17 Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400.
[36] But counsel for the Regional and District Councils submitted that the general importance of the case is nullified by public interest matters to the extent that this ground instead in fact provides a valid basis for a reduction in costs. Mr Maw for the Regional Council referred to rule 14.7(e), which provides:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
…
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding;
…
[37] In Taylor v District Court at North Shore (No 2),18 the prerequisites for invoking r 14.7(e) were summarised as follows:
[9] … the proceeding must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant. […] the unsuccessful litigant must also have acted reasonably in the conduct of the proceeding.
[38]These prerequisites have been subsequently affirmed by the Court of Appeal.19
[39] Mr Maw submitted, in opposing the appeal, the Regional Council was acting in a public interest role in accordance with its statutory responsibilities under the RMA. I was referred to Auckland Regional Council v Rodney District Council where, in dismissing a costs award against the Auckland Regional Council, it was considered relevant that:20
The ARC was acting as a representative of the public interest and in pursuit of its statutory responsibilities under the Resource Management Act 1991 for setting and upholding the integrity of planning and other controls to protect the environment from inappropriate development.
18 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9].
19 New Zealand Climate Science Education Trust v National Institute of Water and Atmosphere Research Ltd [2013] NZCA 555 at [11].
20 Auckland Regional Council v Rodney District Council HC Auckland CIV-2007-404-3464, 18 December 2007 at [18].
[40] Ms Hamilton referred me to New Zealand Health Professionals Alliance Inc v Attorney-General of New Zealand to support the District Council's claim for a reduction in costs.21 While it is true the Court awarded a 32 per cent reduction of costs in that case, it is clearly distinguishable from these circumstances. That case concerned costs against an unsuccessful claim for a declaration of inconsistency with the New Zealand Bill of Rights Act 1990 (NZBORA). Despite the plaintiff’s claim lacking merit, the costs owing were reduced in recognition of appellate Court authority that costs might be awarded differently when the Crown is successful to avoid discouraging litigants from bringing claims under the NZBORA.22 I am not persuaded this case is a relevant comparator.
[41] I accept that this appeal was of general importance, and the Regional and District Councils were acting in public interest roles in defending it but, as I explain below, my conclusion that some arguments were pursued without merit means it cannot be said that the Councils have acted entirely reasonably. Rayonier will be appropriately compensated for this under that ground. I therefore decline to depart from scale costs under this ground, either up or down.
Rule 14.6(3)(b)(ii) - pursuit of arguments without merit
[42] Rayonier submitted the Regional and District Councils argued matters that lacked merit. Mr Pilditch referred to the interim judgment at [140] and [145] where, in relation to the sediment discharge rule, I said:23
[140] [Regarding the sediment discharge rule], no evidence was provided to the panel setting out the circumstances of the Canterbury Region which would justify more stringent sediment discharge rules … nor was there any assessment about how the additional stringency would likely better achieve the freshwater objectives.
…
[145] I agree that the panel addressed the consequences of its decision to recommend greater stringency by expressing its view that the Council should be able to address “all matters” on a discretionary basis. But the panel failed to address whether the stringency proposed was justified in respect of the sediment discharge rule as was required by s 32(4). There is no reference to any evidence justifying greater stringency in the Canterbury region and the
21 Attorney-General v Udompun [2005] 3 NZLR 204.
22 At [186] and [223].
23 Rayonier New Zealand Ltd v Canterbury Regional Council, above n 1.
absence of this is, in my view, fatal. The panel could not recommend that greater stringency was justified for sediment discharges from plantation forestry in Canterbury in the absence of such evidence.
[43]And, in relation to the water yield rule, I said:
[202] Mr Pilditch submitted that, although the text confirms the report writer’s view about the appropriateness of the discretionary activity status, it also confirms that the report writer did not reconsider the effects of forestry on water yield when proposing the PC7 forestry rules because the intention was simply to rollover the existing rules to PC7 to “…simplify the planning framework for plantation foresters…” Mr Pilditch submitted, and I agree, that this explains why the s 32 report did not evaluate the costs and benefits of the changed activity classification status, because it was assumed the activity status outlined in the water yield rule in the operative plan would not be changed.
…
[215] On this matter, I have found in favour of Mr Pilditch’s submission. The s 42A report, the generalised nature of Ms Galbraith’s evidence on the matter and the implication from the evidence that the water yield rule was not fully considered or intended to be rolled over from the operative plan led me to conclude that the panel’s recommendation on this matter was simply not available to it on the evidence before it.
…
[219] The s 32 report did not undertake a cost benefit analysis in relation to the change in activity status proposed and, further, there was no contradicting evidence provided to the panel to challenge the appellants evidence that a discretionary activity status for this rule would increase an applicant’s costs. There was an opportunity for this to be remedied by a s 32AA evaluation being undertaken but that did not occur.
[44] Rayonier's point is that the absence of any evidence addressing these matters was plain from the record, yet the Regional and District Councils persisted in asserting that evidence existed when it did not. Rayonier submitted this issue was more acute with the water yield rule because the Court's conclusion was not derived from inference but, rather, from direct statements made by council officers confirming that fact.
[45] The Regional and District Councils submit the mere fact their arguments were unsuccessful does not mean they were without merit and the appeal raised a genuine question to be argued.
[46] As a general rule, the fact one party was unsuccessful does not engage r 14.6(3)(b)(ii) as the entire costs regime is predicated on the success of one party over another. Nonetheless, the merits of the losing party’s position is a relevant consideration.24 The High Court said, in Gough v Strahl:25
The ordinary consequence of advancing an unsuccessful claim or defence is an adverse award of scale costs. An important principle, expressed in r 14.6(3)(d), is that the determination of costs should be predictable and expeditious. That principle would not be promoted if it was routinely necessary to embark on a further analysis of the overall position taken by the unsuccessful party to decide whether that position was unmeritorious. An award above scale because of an overall lack of merit is, in general terms, justified only in an obvious case, which falls to be considered under r 14.6(4)(a) for indemnity costs.
[47] To answer this, the Regional Council submitted it was named as a respondent to this appeal (as is common practice) to ensure the Court had the benefit of a contradictor.26
[48] As the party advocating for the departure from scale costs, the burden of proof for demonstrating an uplift is justified on this ground lies with Rayonier.27
[49]In Salis v Dunedin City Council, the Court held:28
Although the appellants were unsuccessful in this appeal, I do not accept that in all the circumstances here, it could be said that the appeal was frivolous or entirely hopeless from the outset. And, as to suggestions the appeal was brought with an improper motive, there is nothing definitive before me to substantiate this claim.
[50] The Regional and District Councils' arguments were not frivolous or entirely hopeless but there is merit in Rayonier's submissions regardless. I am persuaded that some uplift is justified in light of this, particularly as it relates to the water yield rule argument. This Court has awarded as much as a 50 per cent uplift in a situation where the losing party’s argument was deemed “so lacking in merit or otherwise hopeless that it could well have supported an overall application for indemnity costs, had those
24 Bullock and Mullins, above n 16, at 71.
25 Gough v Strahl [2014] NZHC 1038 At [23].
26 Federated Farmers Southland Inc v Southland Regional Council [2024] NZHC 2023 at [28] citing
Shand v Legal Complaints Review Officer [2019] NZHC 3105 at [13].
27 Strachan v Denbigh Property Limited (HC) Palmerston North, CIV-2010-454-232, 3 June 2011 at [27].
28 Salis v Dunedin City Council [2017] NZHC 2897 at [15].
been sought”.29 In these circumstances, I consider a far more modest 10 per cent uplift is appropriate.
Rule 14.6(3)(b)(v) / (3)(d) - failure to engage in settlement
[51] Rayonier submitted it was put to considerable and unnecessary costs because of the approach taken by the Regional and District Councils to relief. I have addressed this above and have decided that costs should lie where they fall for this step. Nothing further needs to be said apart from to record that, as Mr Wyeth took a lead in preparing the amendments to the rules, his fees should be reimbursed as a disbursement.
Amount of uplift
[52] Rayonier sought an uplift of $25,000. This constitutes an uplift of nearly 50 per cent. I have accepted their arguments only in relation to the Regional and District Councils pursuit of arguments without merit. I award an uplift of 10 per cent on all non-relief steps.
Apportionment of costs
[53] Rayonier did not provide any submissions about how the award of costs ought to be apportioned. The Regional Council submitted that costs should be shared equally between it and the District Council, whereas the District Council submitted that the Regional Council should share 80 per cent of the costs award, with the District Council meeting 20 per cent.
[54] The District Council, in accordance with r 14.14, accepts it must share responsibility for costs and disbursements with the Regional Council as it decided to actively support the Regional Council in defending the proceedings. But Ms Hamilton submitted its approach during the hearing was to supplement the Regional Council's oral submissions and that its submissions and its written material was scaled back to the minimum required to support the Regional Council's case. Counsel highlighted that the timetable directions required it to file its submissions for the substantive
29 Oxygen Air Limited v LG Electronics Australia PTY Limited [2020] NZHC 1863 at [22].
hearing before the Regional Council's submissions but, for the relief hearing, concurrent submissions were directed to be filed.
[55] While the parties are jointly and severally liable for costs,30 this is subject to the Court’s overriding discretion.31 Standing back, for the substantive hearing, I conclude the Regional Council should bear 70 per cent of the costs and disbursements and the District Council 30 per cent.
Disbursements
[56] Rayonier seeks disbursements to cover senior counsel's travel and accommodation amounting to $2,582.30, and disbursements for their expert planner amounting to $16,242. Mr Pilditch referred to the recent case of Kevin O'Connor Trustees Ltd v National Personnel Ltd where Associate Judge Taylor, when dealing with a memorandum seeking costs upon a discontinuance of a counterclaim, was prepared to accept affidavit evidence that work in respect of the statement of claim for which costs were sought had in fact been done.32 The Associate Judge said that the filing of the affidavit should not have been necessary given that the memorandum setting out that fact by counsel, being an officer of the court, should have been sufficient.
[57] That case is not authority for the general proposition that invoices should not be provided for disbursements. In fact, it is not a case concerning the reasonableness of disbursements claimed. Rule 14.12 of the High Court Rules is clear about the process that should be followed and the requirement for an assessment of reasonableness of the amount of the disbursement to be considered.
[58] The disbursements claimed for Mr Pilditch are likely to be reasonable but the same might not be the case for Mr Wyeth's fee. Given this indication, counsel may be able to agree that Mr Pilditch's disbursements need not exercise the Court any further but, in relation to the claim for Mr Wyeth, further details are required. I indicate my view that Mr Wyeth's costs up to 25 November 2024 will be reasonable.
30 High Court Rules, r 14.14.
31 Rule 14.1.
32 Kevin O'Connor Trustees Ltd v National Personnel Ltd [2025] NZHC 146.
Result
[59] This judgment is final as it relates to all matters apart from Mr Wyeth's disbursements. I direct that costs on the substantive hearing (excluding relief) are to be calculated on a 2B basis and are to be uplifted by 10 per cent and divided as between the Regional Council and the District Council on a 70/30 basis.
[60] I make no order regarding the exact approved disbursement for Mr Wyeth’s fee. I direct the Registrar to determine the reasonableness of Mr Wyeth's fee for work done up to 25 November 2024 if the parties disagree on it.33
[61]An updated schedule of costs should be prepared in light of this judgment.
Harland J
Solicitors:
A F Pilditch KC, Barrister, Downtown Auckland Wynn Williams, Christchurch
Gresson Dorman & Co., Timaru.
33 Pursuant to r 14.12(4) of the High Court Rules 2016.
0
12
0