Rogan v Kaipara District Council

[2019] NZHC 129

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2015-488-182

[2019] NZHC 129

UNDER

Section 72 of the District Courts Act 1947

IN THE MATTER

of an appeal from a judgment of the District Court

BETWEEN

RICHARD BRUCE ROGAN and HEATHER ELIZABETH ROGAN

Appellants

AND

KAIPARA DISTRICT COUNCIL

First Respondent

NORTHLAND REGIONAL COUNCIL

Second Respondent

Hearing:	On the papers
Judgment:	12 February 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 12 February 2019 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Brookfields, Auckland

ROGAN v KAIPARA DISTRICT COUNCIL & NORTHLAND REGIONAL COUNCIL [2019] NZHC 129 [12

February 2019]

[1]                  On 26 September 2017, I delivered a judgment dismissing the appellants’ appeal in relation to rates set by the first respondent, Kaipara District Council (KDC). On 23 February 2018, I granted the appellants leave to appeal to the Court of Appeal against that judgment.

[2]                  On 6 November 2018, the Court of Appeal dismissed the appellants’ appeal. Then on 4 December 2018 the Court of Appeal dismissed the appellants’ application for recall of its judgment.

[3]                  KDC now seeks an award of costs for its engagement in this Court both in opposing the substantive appeal and two preliminary interlocutory matters as well as in opposing the application for special leave to appeal to the Court of Appeal. It also seeks an order directing the registrar to release the security for costs of $2,230.00 that the appellants paid into Court on filing their appeal.

[4]                  The appellants’ counsel has filed a memorandum advising that the appellants are now acting for themselves and have applied to the Court of Appeal to re-open the appeal. For this reason, their counsel invites the Court to defer determining costs until the outcome of the appellants’ latest step in this litigation is known.

[5]                  I consider that it is appropriate for me to determine costs now. The Court of Appeal has refused to recall the judgment it issued on 6 November 2018. The KDC was successful in the appeal before me and before the Court of Appeal. The time has come for it to have costs determined.

Costs in the appeal

[6]                  The KDC seeks category 2B costs in the sum of $14,941.00. Part of this sum comprises a claim in the sum of $1,338.00 for opposing the two preliminary interlocutory matters in this appeal. The KDC was successful in relation to one of those matters but not the other.1 For this reason, the appellants contend that costs should lie where they fall in relation to these interlocutory applications. Accordingly, they contend that the costs award should be reduced by $1,338.00.

1      See minute of Thomas J dated 3 March 2016 at [17] and [32].

[7]                  As the successful party in the appeal I am satisfied that the KDC is entitled to an award of costs at category 2B. Whilst the appellants have sought to argue that the issues they raised were matters of public interest that warrant either no costs award or (by implication) a reduction in costs, I reject such argument. Further, the Court of Appeal has expressly rejected such characterisation of the appeal.2

[8]                  However, I also consider the success each party enjoyed in the preliminary interlocutory applications should be reflected in an outcome where costs lie where they fall in relation to those applications.3 Accordingly, I accept the appellants’ argument that the sum of $14,941.00 should be reduced by $1,338.00, which brings the costs in the appeal to $13,603.

[9]                  I am also satisfied that the security for costs paid into Court should be released to the credit of the KDC.

Costs for the leave application

[10]              The KDC seeks costs for opposing the appellants’ leave to appeal to the Court of Appeal. The total costs sought come to $5,240.50.

[11]              The appellants contend that the KDC should not receive an award of costs for opposing the leave application given that leave to appeal was granted.

[12]              Whilst the appeal to the Court of Appeal was ultimately unsuccessful the appellants were successful in obtaining leave to appeal. The Court of Appeal dismissed the appeal on different grounds to those relied upon by this Court. Further, the Court of Appeal’s judgment has provided general guidance on the meaning of s 60 of the Local Government (Rating) Act 2002. Accordingly, I am satisfied that the grant of leave to appeal was appropriate as the issues the appellant sought to raise by way of second appeal warranted such attention. The KDC chose to oppose the grant of leave to appeal. It could have adopted a neutral stance.

2      Rogan v Kaipara District Council [2018] NZCA 553 at [9] and [14].

3      See discussion at [13] herein on why costs on interlocutory matters are dealt with separately from costs on the substantive outcome.

[13]              The general principle regarding costs on interlocutory applications is that such costs are to be determined and fixed discretely on the basis of the outcome of the interlocutory matter, and the outcome of the substantive matter should have no bearing on their determination.4 I am satisfied that the success of the KDC in the substantive appeals (in this Court and the Court of Appeal) should not detract from the appellants’ success in obtaining leave to bring a second appeal.

[14]              Accordingly, I find the KDC is not entitled to the costs it seeks for opposing the grant of leave to bring a second appeal.

[15]              Ordinarily the appellants as the successful party in the application for leave to appeal would be entitled to an award of costs. Here they accept that the sum of

$5,240.50 as calculated by the KDC is an appropriate sum of costs. They request that this sum be deducted from the costs awarded to the KDC. I am satisfied that it is appropriate to approach costs in this way rather than to make separate orders against each party. Accordingly, I find that the sum of $5,240.50 (which the appellants are entitled to as costs on the leave to appeal application) should be deducted from the

$13,603.00 costs awarded to the KDC for the appeal in this Court. This deduction brings the final costs award to the sum of $8,362.50.

Result

[16]The KDC is awarded costs of $8,362.50.

[17]              The registry is directed to release the $2,230 security for costs to the KDC in part payment of the costs award.

Duffy J

4      See r 14.8 of the High Court Rules.