Saddle Views Estate Limited v Dunedin City Council

[2017] NZHC 2121

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000085 CIV-2016-412-000137 [2017] NZHC 2121

BETWEEN

SADDLE VIEWS ESTATE LIMITED

Appellant

AND

DUNEDIN CITY COUNCIL

Respondent

Hearing:	1 September 2017 (On the papers)
Appearances:	T J Shiels QC for Appellant M R Garbett for Respondent
Judgment:	1 September 2017

JUDGMENT OF DUNNINGHAM J

[1]                  On 25 July 2017, I issued a judgment determining the appeal brought by Saddle Views Estate Limited (SVEL) of a decision of the Environment Court on an application for a declaration.

[2]                  SVEL had challenged the Environment Court’s decision on multiple grounds. Most of those grounds were unsuccessful. Nevertheless, I agreed with SVEL that the Environment Court had erred in law in making two of the three declarations, because it was neither necessary, nor desirable, to make them in the circumstances, when the first declaration had addressed the issue which was before the Court.

[3]                  I reserved the issue of costs but indicated that my tentative view was that costs should lie where they fall as both parties had had a measure of success.

[4]                  I have now received an application for costs from the Dunedin City Council, (the Council). It is opposed by SVEL which agrees with my tentative view that this  is an appropriate case for costs to lie where they fall.

SADDLE VIEWS ESTATE LIMITED v DUNEDIN CITY COUNCIL [2017] NZHC 2121 [1 September 2017]

The Council’s application for costs

[5]                  The Council seeks costs on the basis that, in substance, its position was upheld, and in accordance with the principles set out in High Court r 14.2, costs should follow the event.

[6]                  There were seven alleged errors of law and the Council was required to respond to a range of complicated questions of law raised by SVEL, which required  a significant volume of historic factual material to be traversed, making the hearing complicated and lengthy. The Council also asserts that the two declarations set aside were peripheral to the key declaration in dispute.

[7]                  For those reasons, it applies for costs to be awarded in its favour, on a 2B basis, calculated at $23,972.50. This calculation includes an allowance for second counsel at the hearing, due to the volume of materials relied on by SVEL and the complexity of the case. The calculation also includes the steps involved in Council’s successfully opposing SVEL’s interim application for a stay of the Environment Court’s judgment.

Submissions for SVEL

[8]                  SVEL acknowledges the principles governing costs set out at High Court       r 14.2 and that, if costs are allowed, that category 2 is the relevant category. In support of the primary submission that it is inappropriate to award costs, SVEL argues that the Environment Court made three significant and important declarations and the appeal was successful against two of the three. It does not accept that it is appropriate to say that the declaration upheld was the principle one, with the others classified as peripheral, as contended for by the Council.

[9]                  While acknowledging there were some factual and legal complexities, SVEL says they necessarily arose from the grounds of the appeal and it was not suggested by any party that any of the grounds relied on were untenable or unreasonable. In particular, in relation to the allegation that the Environment Court breached fair trial principles, natural justice principles and displayed apparent bias, this Court did express  some  sympathy with  the appellant’s  concerns, and  acknowledged  that the

appellant faced something of a moving feast from the Environment Court. In all the circumstances, while SVEL was unsuccessful on this ground, there can be no criticism of the appellant for raising it.

[10]              For these reasons, SVEL considers my tentative view on costs was appropriate and nothing raised by the Council suggests otherwise.

[11]              In any event, if costs are considered payable to the Council then three aspects of the claim for costs are contested.  They are:

(a)in respect of the claim for filing a memorandum for the first or subsequent case management conference, SVEL says this was prepared by it and approved and signed by counsel for the respondent with only one minor alteration and therefore no costs should be allowed to the respondent on item 11;

(b)the notice of opposition to the interlocutory application was very short and for this reason, at most, band A costs of $669 should be allowed;

(c)second counsel was present but took no part in the hearing. Given the agreed category 2 classification there is no justification for an allowance for second counsel.

Discussion

[12]              The first issue is whether one party should be considered the party who fails with respect to a proceeding or an interlocutory application and therefore should be required to pay costs to the party who succeeds.1

[13]              

In this regard, there are a number of ways of looking at the issue, and they generate different results. While SVEL raised six general areas of challenge to the Environment Court’s decision, it did not succeed in four, but succeeded in part, on the issue of whether there was jurisdiction to make two of the three declarations, which precluded the need to consider the issue that one of these declarations was

1      As required by High Court r 14.2(a).

wrong in law. The practical outcome, however, was that two of the three  declarations made by the Environment Court were set aside. However, from a substantive point of view, SVEL did not achieve the outcome it wanted, and the Council did.

[14]              On any view of the matter, SVEL did have partial success in the appeal, albeit it may feel it won some battles but lost the war. Partial success in some cases can warrant a reduction in the quantum of costs awarded, or justify an order that no costs be awarded at all. In the present case, I have come to the view that the  partial  success had by the appellant is sufficient to confirm that costs should lie where they fall in terms of the substantive appeal.

[15]              However, the costs sought by the Council included the successful defence of SVEL’s interlocutory application for a stay of proceedings. In that, the Council was entirely  successful  and  I  consider  an  award  of  2B  costs  as  claimed,     totalling

$5,237.50 should be made in the Council’s favour. I see no need to reduce the claim for the notice of opposition. The brevity of a document does not necessarily reflect the time spent in preparing it. In any event, the claim overall for costs associated  with the interlocutory hearing seem reasonable, so I would not modify the 2B calculation for any step in it.

[16]              Accordingly, I make a costs order against the appellant requiring it to pay the respondent the sum of $5,237.50.

Solicitors:

O’Neill Devereux, Dunedin Anderson Lloyd, Dunedin