Scope Resources Limited v Queenstown Lakes District Council
[2024] NZHC 1614
•19 June 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2023-425-000017
[2024] NZHC 1614
UNDER Judicial Review Procedure Act 2016 and part 30 of the High Court Rules 2016 IN THE MATTER
of an application for review of a decision by Queenstown Lakes District Council to grant a land use consent under the Resource Management Act 1991
BETWEEN
SCOPE RESOURCES LIMITED
Applicant
AND
QUEENSTOWN LAKES DISTRICT COUNCIL
First Respondent
AND
THE CARDRONA CATTLE COMPANY LIMITED
Second Respondent
On the papers Counsel:
D Anderson and J E Macdonald for the Applicant
M E Davenport and A E Milne for the First Respondent L C R Burkhardt for the Second Respondent
Judgment:
19 June 2024
JUDGMENT OF PRESTON J
(Costs)
This judgment was delivered by me on 19 June 2024 at 4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date……………
SCOPE RESOURCES LIMITED v QUEENSTOWN LAKES DISTRICT COUNCIL [2024] NZHC 1614 [19 June 2024]
Introduction
[1] Scope Resources Limited (Scope) succeeded in its claim for judicial review of part of the Queenstown Lakes District Council’s (QLDC) decision to grant a resource consent to The Cardrona Cattle Company Limited (CCCL).1 The consent sought was to develop a self-storage facility next to land on which Scope operates a large landfill.
[2] The Court held that the consent authority’s decision — by independent commissioners — was infected by error due to CCCL’s late addition of a residential component to its application after Scope had provided an affected person’s approval (APA). The procedural issue, the significance of the defective APA and CCCL’s omission to obtain an updated approval was not clarified or drawn to the Commissioners’ attention effectively until midway through the hearing. The breach of natural justice was compounded as the Commissioners were not assisted by a pause in the hearing or submissions addressing the failure of process. Instead, a one-sided debate on the issue of reverse sensitivity occurred in Scope’s absence, which debate informed the Commissioners’ decision.
[3] As a result, the Court quashed that part of the Commissioners’ decision granting a discretionary consent for the manager’s residence, including conditions associated. The matter was remitted to QLDC for reconsideration of that part of the resource consent application.
[4]The remainder of CCCL’s consent is unaffected.
[5] QLDC as the consent authority was named as first respondent. It did not oppose Scope’s statement of claim and abided the Court’s decision. Leave was reserved to be heard as to costs.
[6] My initial impression was that costs should follow the event on a category 2 band B basis together with disbursements as fixed by the Registrar.
1 Scope Resources Ltd v Queenstown Lakes District Council [2024] NZHC 881.
Application
[7] Scope seeks an award of costs against CCCL on a 2B basis plus disbursements. It does not seek that the consent authority bears any portion of those costs. Costs sought are:
(a)Scale costs of $26,290.00.
(b)Disbursements of $4,036.68.
[8] CCCL challenges the costs application in several respects. It submits the scale costs should be reduced in relation to costs of commencement of proceedings, filing of case memoranda and appearance of second counsel at the hearing. It also challenges part of the disbursements incurred, as to photocopying costs. Further, CCCL contends there should be an apportionment as to 20 per cent of the total costs awarded, to be paid by the consent authority QLDC.
[9]QLDC opposes any apportionment of costs against it.
Costs principles
[10] All matters of costs are discretionary, but the discretion must be exercised on a principled basis and having regard to the relevant provisions of the High Court Rules 2016. The determination of costs, so far as possible, should be both predictable and expeditious. The party that has lost should pay the costs of the party that has won, unless there are exceptional reasons to the contrary.2
[11] It is not the case that a party abiding the decision of the court can never be liable for any costs, as Toogood J noted in Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council.3 In determining whether to order a contribution where a party abides, the extent of the contribution required will depend
2 Rule 14.2(1)(a); Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].
3 Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council
[2019] NZHC 449, 2019 NZAR 587 at [41]. See, also Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council HC Invercargill CIV-2008-425-518, 19 May 2009 at [18].
on the extent of the original error and the reasonableness of the party’s conduct thereafter.4
Discussion
[12]I deal with each of CCCL’s costs challenges in turn.
Costs of commencement (Item 1)
[13] CCCL seeks a discount of 20 per cent ($1,434) of the costs of commencement as redrawn pleadings were required. Scope was directed to file an amended statement of claim clarifying its claim and the grounds for judicial review invoking a breach of natural justice within the statutory regime. I accept there should be a modest adjustment of costs given this put CCCL to further costs of filing an amended statement of defence. However, the more explicit pleading was of limited extent, better articulating the alleged procedural failures and, correspondingly, CCCL’s further pleading in the amended statement of defence of limited compass. I consider costs should be reduced by 10 per cent ($717), to reflect this.
Costs of case memoranda (Item 11)
[14] CCCL submits a reduction of one third ($956) should be applied to the costs of filing the case management memoranda. Counsel submits these were generally prepared efficiently and collaboratively and, on at least one occasion CCCL prepared a draft memorandum.
[15] I am not persuaded any adjustment is merited on this basis. Counsel’s professional conduct is expected and appropriate, but does not displace the usual presumption that costs will follow the event.
Appearance costs: second counsel (Item 35)
[16]CCCL opposes the costs of second counsel’s appearance at the hearing —
$1,195.
4 Royal Forest and Bird Protection Society of New Zealand Inc v Northland Regional Council,
above n 3, at [41].
[17] The default position under sch 3 of the High Court Rules is that provision is made for one counsel in a proceeding.5 Generally, a category 2 case must have some exceptional feature to justify a second counsel allowance.6 Brewer J summarised the ordinary approach to the question of second counsel costs in Northwest Developments Ltd v Zhang as follows:7
[23] The rules do not provide guidance as to when allowance for second counsel ought to be made. The structure of the rules suggests that the norm is only one counsel will be provided for. Whether the court will depart from that norm is influenced by the complexity of the proceedings including the issues involved, the range of evidence, the number of witnesses, and the volume of evidence involved.
(footnotes omitted)
[18] Here, Scope’s oral argument at the hearing was split between co-counsel, who each dealt with one of the applicant’s two causes of action. As Scope accepts, the underlying factual matrix overlapped to a significant degree. While Scope was entitled to so proceed, there was no special or exceptional reason requiring second counsel to have carriage of that part of the action which she argued, notwithstanding it involved discrete legal principles.
[19]Scope’s costs for second counsel at the hearing are accordingly declined.
Disbursements
[20] CCCL opposes the part of the disbursements relating to photocopying costs ($1,757.48) for copying the full QLDC eDocs file. Ms Burkhardt for CCCL submits counsel for Scope was unable to provide the common bundle in electronic format to her. Ms Burkhardt says by the time this was discovered it was too late to obtain the copy provided to her instructing solicitors, who are based in Queenstown. She is based in Tauranga. CCCL considered it appropriate to provide an electronic copy for the Court and so was put to the task of recreating the bundle and having it printed. Counsel
5 Prattley Enterprises Limited v Vero Insurance NZ Limited [2017] NZHC 1599, (2017) 23 PRNZ 484 at [44].
6 At [44], citing Andrew Beck Principles of Civil Procedures (3rd ed, Thomson Reuters, Wellington, 2012) at [13.13.5].
7 Northwest Developments Ltd v Zhang [2019] NZHC 2146 at [23], citing Brady v Presbyterian Church of Aotearoa New Zealand [2013] NZHC 2300 at [2].
submits CCCL should not effectively have to pay for creating the bundle twice, including the cost of recreating it digitally.
[21] After discussion with counsel at the pre-trial conference a week before the hearing I directed the parties to jointly produce the common bundle, to be filed in electronic and hard copy form and that Scope would file the court’s hard copy promptly thereafter. No timetabling directions had been made in this regard, but neither party had identified this or sought direction until just prior to the teleconference. CCCL’s copy was provided to its instructing solicitors. There had been ample time prior to the hearing in which preparation and filing of the bundle (including electronic but still requiring hard copy) could have been completed in time to ensure all parties, their counsel and the court had the necessary documents. If so, this could have included the dispatch of the second respondent’s hard copy to its counsel in time.
[22]I do not consider an adjustment of the photocopying costs is warranted.
Apportionment
[23] QLDC, the consent authority, abided the court’s decision. This position was orthodox and confirmed well before the hearing. CCCL seeks apportionment, as to 20 per cent of the costs determined, against QLDC on the basis:
(a)Its decision, through its Commissioners, was the subject of challenge.
(b)QLDC did not reject the validity of its decision or indicate to the court or parties that it considered it flawed. Had it done so, CCCL says that “may well have impacted on” its own approach to the proceedings.
(c)The Commissioners’ approach was subject to some — at least implicit
— criticism in this Court’s decision.
[24] My task is to make an assessment of overall justice as between the particular parties. This case is to be distinguished, in my view, from one in which a council made a very fundamental and serious error necessitating the issuing of proceedings, such as was the case for example in Kawarau Jet Services Holdings Ltd v Queenstown Lakes District Council at [18].
[25] The evidence indicated the independent commissioners were operating under the misapprehension that Scope’s APA extended to the addition of the manager’s residence, prior to and up until the point in the hearing when CCCL’s agents clarified that the APA was defective — having been provided prior to CCCL’s amended application which introduced a residential component — and clarified its failure to obtain an updated APA. The timeline showed there had been multiple opportunities for CCCL to identify the procedural flaw, make attempts to correct it and/or notify the Commissioners of the issue.
[26] Although the Commissioners granted the residential consent component on a wider basis than CCCL sought in the hearing, this followed CCCL’s representatives’ advocacy and opinion evidence on the associated issue of reverse sensitivity which was said to be negligible.
[27] Shortly after the Commissioners’ decision, CCCL engaged in settlement discussions however these were not fruitful. As counsel for QLDC submits, it was open to it to surrender its resource consent in order to mitigate its exposure to costs.
[28] On the facts in this case I also accept QLDC’s counsel’s submission that as the decision maker there was no proper basis for it to reverse its decision as CCCL suggests was an option. Its position vis a vis the litigation, to abide, was plainly reasonable.
[29] For these reasons, I do not consider the overall justice in this case requires that QLDC should bear a proportion of the costs.
Decision
[30] The following adjustments should be made to the schedule of costs claimed by CCCL:
(a)costs item [1] should be reduced by 10 per cent ($717.00); and
(b)the allowance for second counsel appearance: costs item [35] should be removed ($1,195.00).
[31] Following these adjustments, the total costs award is reduced to $24,378.00. There is no adjustment to the disbursements as claimed; Scope is entitled to the sum of $4,036.68.
[32]No apportionment of costs is merited against the first respondent.
[33] Scope is awarded costs against the second respondent on a 2B basis in the sum of $24,378.00 and disbursements in the sum of $4,036.68.
………………………………………
Preston J
Solicitors/Counsel:
Mactodd Lawyers, Queenstown for the Applicant
Queenstown Lakes District Council for the First Respondent Canterbury Legal, Christchurch for the Second Respondent
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