Ruakawa Charitable Trust v South Waikato District Council

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-108

[2024] NZHC 1792

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of a certificate of compliance under Section 139 of the Resource Management Act 1991

BETWEEN

RAUKAWA CHARITABLE TRUST

Applicant

AND

SOUTH WAIKATO DISTRICT COUNCIL

First respondent

AND

J SWAP CONTRACTORS LIMITED

Second respondent

AND

WAOTU QUARRIES LIMITED

Third respondent

Hearing: On the papers

Counsel:

MME Wikaira and R K Douglas for applicant

M H Hill and K M Stubbing for second and third respondents

Date of judgment:

3 July 2024

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 3 July 2024 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
B R Arapere, Barrister, Whanganui Whāia Legal, Wellington
Cooney Lees Morgan, Tauranga Tompkins Wake, Hamilton

RAUKAWA CHARITABLE TRUST v SOUTH WAIKATO DISTRICT COUNCIL – Costs [2024] NZHC 1792 [3 July 2024]

[1] My 11 September 2023 judgment (issued 3 October 2023) set aside the council’s 30 and 31 March 1999 certificates of compliance for the contractor’s and quarry owner’s quarrying activities at the quarry, encompassed within Raukawa’s takiwā.1 The council admitted its error, and abided my decision.

[2] As to costs, subject to any contrary view taken by the parties, my preliminary view was — given the council’s longstanding error, justifiably relied on by the contractor and quarry owner — costs should lie where they fall or fell; that is, to be borne by the party incurring them.2

[3] Raukawa’s timely disagreement (and the contractor’s and quarry owner’s as timely response) only has been brought to my attention this week. I regret the delay in resolution of Raukawa’s claim for costs.

[4] Raukawa seeks 2B costs of $26,051.00, plus disbursements of $5,270.65, jointly and severally against the contractor and quarry owner. It says it acted solely to protect its kaitiaki interests in relation to Pirauiti Pā, in the face of the contractor’s and quarry owner’s continued reliance on and benefit from the council’s error.

[5] The issue is not so clear-cut. Subject to my discretion, in general principle, “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”.3 The unsuccessful party here was the council, whose decision Raukawa successfully overturned. The council’s decision was not susceptible to being rendered void by disclaimer or consent. The contractor and quarry owner were entitled to rely on it unless and until overturned. Raukawa has not sought costs of the council.

[6]I therefore am confirmed in my preliminary view. Costs lie where they fell.

—Jagose J

1 Raukawa Charitable Trust v South Waikato District Council [2023] NZHC 2534 at [29].
2 At [30].
3 High Court Rules 2016, r 14.1–14.2.

CaseChat Overview and Summary

The Ruakawa Charitable Trust sought judicial review of decisions made by the South Waikato District Council concerning a certificate of compliance under the Resource Management Act 1991. The trust challenged the council's 1999 certificates of compliance for quarrying activities within Raukawa's traditional lands, arguing the council had made errors in its decision-making process. The matter was heard on the papers, with Raukawa represented by MME Wikaira and R K Douglas, and the council and other respondents represented by M H Hill and K M Stubbing. The court had to determine whether the council's certificates were valid and whether Raukawa was entitled to costs from the parties involved.

The court considered whether the council's certificates of compliance were valid and whether Raukawa was entitled to costs from the contractor and quarry owner. The court found that the council's certificates were indeed invalid due to procedural errors, and therefore set them aside. The council had admitted its error and accepted the court's decision. The primary issue before the court was whether Raukawa was entitled to costs from the contractor and quarry owner who had relied on the council's certificates. The court noted that in general, costs should lie with the unsuccessful party in a proceeding, which in this case was the council. However, the contractor and quarry owner were entitled to rely on the council's certificates until they were overturned, and Raukawa had not sought costs from the council. Thus, the court confirmed that costs should lie where they fell, meaning Raukawa was not entitled to costs from the contractor and quarry owner.

In conclusion, the court ruled that the South Waikato District Council's certificates of compliance were invalid and set them aside. The court further determined that Raukawa was not entitled to costs from the contractor and quarry owner, as they had reasonably relied on the council's certificates. The costs of the proceeding were to be borne by the parties as they had incurred them.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	the Judicial Review Procedure Act 2016
IN THE MATTER	of a certificate of compliance under Section 139 of the Resource Management Act 1991
BETWEEN	RAUKAWA CHARITABLE TRUST Applicant
AND	SOUTH WAIKATO DISTRICT COUNCIL First respondent
AND	J SWAP CONTRACTORS LIMITED Second respondent
AND	WAOTU QUARRIES LIMITED Third respondent