Ruakawa Charitable Trust v South Waikato District Council

[2024] NZHC 1792

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.