Scaife v Queenstown Lakes District Council

[2012] NZHC 2734

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2011-425-000583 [2012] NZHC 2734

BETWEEN  JAN MARC SCAIFE AND CHRISTINE SUSAN BYRCH

Applicants

AND  QUEENSTOWN LAKES DISTRICT COUNCIL

Respondent

Hearing:         Dealt with on the papers

Judgment:      18 October 2012

JUDGMENT OF CHISHOLM J

[1]      In this proceeding the applicants sought to judicially review the respondent’s decision granting a resource consent on a non-notified basis.  After this proceeding was  issued  the  applicant  for  the  resource  consent  decided  to  make  another application on a notified basis and that application was granted.  The applicants then appealed to the Environment Court and the parties are in the process of negotiating a settlement.

[2]      On  25  September  2012  Judge  Osborne  gave  directions  as  to  the  future progress of this proceeding.   He directed the applicants to advise the Court by

2 October 2012 whether they were going to pursue this proceeding or seek leave to withdraw it. The Judge recorded that in the event that the proceeding was withdrawn it would be necessary for the issue of costs to be determined.

[3]      The applicants now seek to withdraw the application for judicial review. They also seek an award of costs on a 2B basis for the commencement of the proceedings, preparation of the applicants’ affidavit, and preparation for the case

management conference.

SCAIFE V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CIV-2011-425-000583 [18 October 2012]

[4]      While leave to withdraw the application is not opposed by the respondent, it opposes an order for costs on the basis that costs should lie where they fall.   In support of that proposition counsel for the respondent submits:  the consent holder chose to file the new application for its own reasons; no assumption can be made that this was as a result of the proceeding being brought; there is no evidence before the Court as to the rationale of the consent holder acting as it did; the applicants have not established that the respondent acted unlawfully or otherwise acted in a way which could give rise to a reviewable error justifying an award of costs.

[5]      Leave to withdraw the proceeding is granted.   Both parties accept that the issue of costs should be dealt with on the papers.

[6]      Under rule 14.2(a) the party who fails with respect to a proceeding should pay costs to the party who succeeds.  In the normal course of events withdrawal of a proceeding will result in costs against the applicant.  However, given the underlying circumstances behind the withdrawal of the application for judicial review in this case a closer analysis is required.

[7]      It is inconceivable that there was no connection between the issuing of this proceeding and the lodging of the new application on a notified basis.   It can be safely inferred that the new application for resource consent was made because of the applicant’s concern that a reviewable error might be exposed by the judicial review proceeding.  In any event, the application on notice gave the applicants in this proceeding a voice in the resource management process which was the underlying objective of the proceeding in this Court.  Thus their application for judicial review was successful, albeit by an indirect route.

[8]      On this basis the applicants should be regarded as the successful party for the purposes of rule 14.2(a).   An award of costs as sought by the applicants would therefore accord with that rule and also with the interests of justice.  The applicants are entitled to 2B costs in relation to the steps referred to in the memorandum of counsel for the applicants dated 20 September 2012.

Solicitors:

Berry & Co, Queenstown,  [email protected]

Pru Steven, Christchurch,  [email protected]

MacAlister Todd Phillips, Queenstown,  [email protected]