Rongotai Investments Limited v Wellington City Council
[2020] NZHC 820
•28 April 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-430
[2020] NZHC 820
BETWEEN RONGOTAI INVESTMENTS LIMITED
Appellant
AND
WELLINGTON CITY COUNCIL
First Respondent
NZ CASH FLOW CONTROL LIMITED
Second Respondent2468 LIMITED BUNNINGS LIMITED
WELLINGTON INTERNATIONAL AIRPORT LIMITED
Third Respondents
VALUER-GENERAL
Intervener
Hearing: On the papers Appearances:
J K Scragg and E M Greig for the Appellant M J Barnes for the First Respondent
K P Sullivan for the Second Respondent and 2468 Limited L M McEntegart and S K Lennon for Bunnings Limited
B M Russell and B G Frowein for Wellington International Airport Limited
Appearance for Intervener is excusedJudgment:
28 April 2020
JUDGMENT OF CULL J
[1] I declined an application by Rongotai Investments Limited (Rongotai) for an expedited hearing of a legal question in its appeal from a decision of the Land
RONGOTAI INVESTMENTS LIMITED v WELLINGTON CITY COUNCIL [2020] NZHC 820 [28 April 2020]
Valuation Tribunal (the Tribunal).1 In my decision, I granted Wellington International Airport Ltd (Wellington Airport) leave to cross-appeal and joined Bunnings Limited (Bunnings) as a party to the proceedings.
[2]The respondent parties now seek costs.
[3] Rongotai agrees that the respondents are entitled to costs on a 2B basis but submits they should not be entitled to costs on certain steps claimed, namely:
(a)Wellington Airport and Bunnings should not able to claim costs for steps taken before they were joined as a party.
(b)Costs claimed for steps relating to the first case management conference should not be allowed as they are properly regarded as costs in the overall proceeding and not costs in the interlocutory applications. Further, the respondents have claimed for costs for steps they did not take in respect of the first case management conference.
(c)The respondents had joint or common positions on their opposition to the expedited hearing application. They should only be entitled to one set of costs for the steps where they had joint or common positions.
[4] Rongotai also disputes several of the disbursements claimed by the successful respondents. I address these issues in turn.
Costs claimed for steps prior to joinder
[5] Wellington Airport and Bunnings were not parties to the substantive proceedings before the Tribunal. They sought to be joined as parties to this proceeding after commencement. Wellington Airport sought leave to file a notice of cross-appeal as a “person affected” by the Tribunal’s decision pursuant to s 26 of the Land Valuation Proceedings Act 1948. Bunnings applied for an order that it be added as a party to the
1 Rongotai Investments Ltd v Wellington City Council [2019] NZHC 2742.
proceeding on the basis its presence was necessary to adjudicate on and settle all questions involved in the proceeding.2
[6] Rongotai submits that, as Wellington Airport and Bunnings were not required to take steps before they were joined as parties, they should not be entitled to costs for any steps they took prior to being joined.
[7] I found that both Wellington Airport and Bunnings had legal rights or interests that were directly affected by the outcome of the appeal.3 They were entitled to make applications to be joined and take steps to defend their application in response to opposition from Rongotai. I granted their applications and, as the successful parties, they are entitled to costs.4 I do not consider that the general principle that costs follow the event should be altered merely because they were not parties prior to October 25.5 Indeed, had their applications been unsuccessful, Rongotai would have been entitled to costs notwithstanding their status as non-parties. For those reasons, I reject Ronogtai’s first submission.
Costs claimed in respect of the first case management conference
[8] The respondents each seek costs in respect of steps relating to the first case management conference.6 Costs on interlocutory applications must be fixed when the application is determined unless there are special reasons to the contrary.7 This rule reflects the fact that the merits of interlocutory applications and those of the substantive proceeding are different matters.8
[9] Rongotai submits that costs related to the first case management conference are properly regarded as costs in the overall proceeding and should be determined following the outcome of the substantive appeal. Rongotai relies on Haldon Range Vineyards Ltd v Tonkin & Taylor Ltd, where all costs in relation to case management were to be determined following the outcome of the trial. The Associate Judge found
2 High Court Rules 2016, r 4.56(1)(b)(ii).
3 At [35] and [41]-[45].
4 High Court Rules 2016, rr 14.8 and 14.2(a).
5 Rule 14.2(a).
6 Namely, preparation, filing memoranda and appearances.
7 High Court Rules 2016, r 14.8.
8 Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].
the case was “complicated and detailed” and had a “number of procedural issues before the courts over time”.9 In that case the merits of the interlocutory applications and the substantive history were not easily severable. That is not the case here. The case management conference was a necessary precursor to the hearing of these interlocutory applications. While some tangential issues related to the broader appeal were discussed, the primary focus was the hearing of the interlocutory applications. I consider there is no reason why the successful respondents should not be entitled to costs for this step, although I deal with quantum below.
More than one award of costs
[10] Next, Rongotai submits that the respondents should not be entitled to more than one award of costs for certain steps taken where the respondents had a common position, or where they filed a joint memorandum, or where they were jointly represented by one counsel. The following is a table of the scale costs disputed by Rongotai:
Bunnings 11 Filing memorandum for first case management conference $956 Memorandum filed jointly with Wellington Airport – should only be entitled to half the costs. 12 Appearance at mentions hearing $478 Joint representation with NZ Cash Flow Ltd – should only be entitled to half the costs. 11 Filing memorandum mentions hearing for $478 Common position with other respondents – should only be entitled to one third of the costs Wellington Airport 11 Filing memorandum for first case management conference $956 Memorandum filed jointly with Bunnings – should only be entitled to half the costs. 11 Filing memorandum mentions hearing for $478 Common position with other
respondents – should only be entitled to one third of the costs
NZ Cash Flow Control Ltd & 2468 Ltd 13 Appearance at first management conference case $717 Represented by counsel for Bunnings – should not be entitled to costs. 11 Filing memorandum mentions hearing for $956 Common position with other respondents – should only be entitled to one third of the costs
9 Haldon Range Vineyards Ltd v Tonkin & Taylor Ltd [2014] NZHC 1230.
12 Appearance at mentions hearing $478 Common position with Bunnings
– should only be entitled to half of the costs.
[11] I am satisfied that it is inappropriate to award two separate sets of costs where the parties filed joint memoranda or had joint representation. More difficult is the question of costs for the step taken in opposing Rongotai’s application for expedited hearing of a legal question. Rule 14.15 provides for costs awards where defendants defend separately:
14.15 Defendants defending separately
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a)several defendants defended a proceeding separately; and
(b)it appears to the court that all or some of them could have joined in their defence.
[12] This rule captures the principle that Courts should be cautious when awarding costs in favour of multiple parties, particularly where there is some overlap in the litigation position.10 When determining whether it is appropriate to award costs separately, the Court may consider the following:11
(a)whether the parties have common or overlapping interests, and if so, to what extent,
(b)whether the parties took legal advice as to the appropriateness of separate or joint representation, and if so, what it was, and whether it was followed,
(c)the extent to which parties did or could have relied upon the evidence or submissions of another.
10 Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [8]; and Lai v Liu Shun-Mei Huang [2020] NZHC 588 at [9].
11 Independent Māori Statutory Board v Auckland Council, above n 10; Lai v Liu Shun-Mei Huang, above n 10; Pure Elite Holdings Ltd v Bodco Ltd [2019] NZHC 2982.
[13] In my judgment, I canvassed the grounds on which Cash Flow and 2468 opposed the making of the orders sought by Rongotai and noted that the grounds of opposition “largely mirror those of the non-parties”.12 Their interests overlapped to a significant extent, and given their procedural history before the Tribunal, the parties would have been sufficiently familiar with each other’s positions, such that it was appropriate for one party to rely upon the other’s submissions. Overall, I make one award of costs only for the above steps.
Disbursements
[14] In my view, the successful respondents each seek costs for sealing the judgment. This cost may be included in the costs award if claimed and verified.13 Rongotai submits that there is no evidence the judgment has been sealed. The respondents should provide suitable evidence of such to the applicants. In my view the successful respondents are entitled to this cost following confirmation that step has been taken.
[15] Bunnings has also sought disbursements for the travel and accommodation of out-of-town counsel in the sum of $1,891. Ronogtai submits the disbursements ought not to be recoverable as the there is no special justification for instructing out of town counsel and Bunnings had Wellington-based solicitors that were familiar with the factual background and sufficiently capable to argue the application. Counsel for Bunnings, Mr McEntegart, submits it is not unreasonable for out-of-town counsel to have represented it at the hearing “given the issues Rongotai seeks to appeal and the relationship to other proceedings in which counsel is engaged”.
[16] Disbursements for counsel’s travel expenses may be included in the costs award if it is necessary for the conduct of the proceeding and reasonable.14 In Russell v Taxation Review Authority, Fisher J observed that travel expenses are “unlikely to be necessary where there is suitable counsel available in the High Court centre
12 Rongotai Investments Ltd v Wellington City Council, above n 1Error! Bookmark not defined., at [18].
13 High Court Rules 2016, r 14.1(2).
14 Rule 14.12(2); and see Buis v Accident Compensation Corporation (2010) 19 PRNZ 585 (HC).
involved” and there is no other special justification for instructing out of town counsel.15
[17] Here, the proceedings were filed in Wellington and counsel was available in Wellington to represent the parties at the hearing on 27 September 2019. I consider the proceedings were not so overly complicated as to require specialist out-of-town counsel. I note that Wellington-based solicitors represented Bunnings at the mentions hearing.
[18]I disallow the travel expenses claimed.
Result
[19] The successful respondents are entitled to costs. Their respective costs allowed are as follows:
Bunnings Scale costs 10 Preparation for first case management conference 0.4 $956 11 Filing memorandum for first case management
conference
0.4 $956/2
=$478
Memorandum filed jointly with Wellington Airport – only entitled to half the
costs.
13 Appearance at first case management conference 0.3 $717 11 Filing memorandum for mentions hearing 0.4 $956/3
=$318.70
Common position with other respondents – only entitled to one third of the costs 12 Appearance at mentions hearing 0.2 $478/2
= $239
Joint representation with NZ Cash Flow Ltd – only entitled
to half the costs.
22 Filing interlocutory application 0.6 $1,434 23 Filing opposition to interlocutory application 0.6 $1,434 24 Preparation of written submissions in support 1.5 $3,585
15 Russell v Taxation Review Authority (2002) 14 PRNZ 515 (HC) at [25], followed in Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786 (HC).
of interlocutory application 24 Preparation of written submissions in opposition to interlocutory application 1.5 $3,585 26 Appearance at hearing of defended application for sole or principal
counsel
0.5 $1,195 29 Sealing judgment 0.2 $478 Granted, pending confirmation of sealed judgment Total scale costs $14,419.70 Disbursements Filing fee for application $500 Filing fee for notice of opposition $110 Sealing judgment fee $50 Total disbursements $660 TOTAL $15,079.70
Wellington Airport 10 Preparation for first case management conference 0.4 $956 11 Filing memorandum for first case management
conference
0.4 $956/2
=$478
Memorandum filed jointly with Bunnings – only entitled to half the costs. 13 Appearance at first case management
conference
0.3 $956 11 Filing memorandum for mentions hearing 0.4 $956/3
=$318.70
Common position with other respondents – only entitled to one third of the costs 23 Filing notice of opposition to interlocutory application for separate question and expedited hearing 0.6 $1,434 24 Preparation of written submissions in opposition to
interlocutory application
1.5 $3,585
26 Appearance at hearing of defendant application for sole or principal counsel 0.5 $1,195 29 Sealing judgment 0.2 $478 Granted, pending confirmation of sealed judgment Total $9,400.70
NZ Cash Flow Control Ltd & 2468 Ltd 10 Preparation for first case management conference 0.4 $956 11 Filing memorandum for first case management
conference
0.4 $956 11 Filing memorandum for mentions hearing 0.4 $956/3
= $ 318.70
Common position with other respondents – only entitled to one third of the costs 12 Appearance at mentions hearing 0.2 $478/2
= $239
Joint representation with Bunnings – entitled to half
of the costs.
23 Filing opposition to interlocutory application 0.6 $1,434 24 Preparation of written submissions in opposition to interlocutory application 1.5 $3,585 26 Appearance at hearing of defended application for sole or principal counsel
27 September
0.5 $1,195 29 Sealing judgment 0.2 $478 Granted, pending confirmation of sealed judgment Total $9,161.70
Cull J
Solicitors:
Duncan Cotterill, Wellington for Appellant
Lane Neave, Christchurch for Third Respondents
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