SKP Inc v Auckland Council

[2020] NZHC 2215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-96

[2020] NZHC 2215

UNDER

the Resource Management Act 1991 (“Act”)

IN THE MATTER

of an appeal under s 299 of the Act

BETWEEN

SKP INCORPORATED

Appellant

AND

AUCKLAND COUNCIL

Respondent

KENNEDY POINT BOATHARBOUR LIMITED

Consent Holder

Hearing:

On the papers

Counsel:

JDK Gardner-Hopkins for the Appellant

M C Allan and R Smith for the Respondent
P F Majurey and V Morrison-Shaw for the Consent Holder

Judgment:

28 August 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 28 August 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr JDK Gardner-Hopkins, Barrister, Wellington

Mr T Greenwood (appellant’s instructing solicitor), Greenwood Law Ltd, Waiheke Island
Mr M C Allan and Ms R Smith, Brookfields, Auckland

Mr P F Majurey and Ms V Morrison-Shaw, Atkins Holm Majurey Ltd, Auckland

SKP INCORPORATED v AUCKLAND COUNCIL [2020] NZHC 2215 [28 August 2020]

[1]                 Following my judgment on 19 June 2020 dismissing an appeal by SKP Incorporated (SKP),1 the parties have been unable to agree on costs.

[2]Kennedy Point Boatharbour Ltd (KPBL) seeks 2B costs and disbursements of

$13,494 including costs for second counsel.

[3]                 Auckland Council seeks costs of $4,653.33, which is 33 per cent of 2B scale costs given its limited role.

[4]                 SKP disputes KPBL’s allowance for second counsel, seeks a further reduction for “partial success” and disputes any costs award in favour of Auckland Council. SKP also seeks deferral of enforcement pending leave to appeal.

Second counsel

[5]                 Allowance for second counsel is not automatic. It requires specific allowance. The key question is whether the nature of the proceeding was such as to justify requiring the losing party to contribute to the winning party’s costs in having a junior counsel present.2 There will usually need to be some unusual feature to the litigation to warrant allowances for second counsel.3

[6]                 In this case, as Mr Gardner-Hopkins submitted, the case on appeal and submissions were not particularly complex. The appeal hearing was completed within a day. The case was capable of being conducted by principal counsel only, as SKP did.

[7]                 On the other hand, the history of the litigation was complex. Mr Majurey’s involvement as senior counsel for KPBL is relatively recent. His admirably succinct oral submissions highlighted the advantage of experienced counsel.

1      SKP Incorporated v Auckland Council [2020] NZHC 1390.

2      Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 (HC) at [21]; and Tao v Strata Title Administration Ltd [2016] NZHC 1821 at [52].

3      Tao v Strata Title Administration at [52]. See also ZYXCBA Developments Ltd v Auckland Council

[2015] NZHC 2224 at [16].

[8]                 On balance, I do not consider the nature of the appeal to be unusual warranting allowance for second counsel. As Chambers J emphasised in Nomoi, it must be remembered that it is a fundamental principle of the costs regime that the determination of costs is not related to the actual counsel involved.4

SKP’s partial success?

[9]                 I do not accept Mr Gardner-Hopkins’ characterisation of partial success justifying a 30 per cent reduction in costs. The observation that the Environment Court appears to have answered a different question was only a component of SKP’s “change in circumstances” ground, which did not succeed. I also concluded that, even if there was a “change in circumstances”, it did not affect the rehearing decision. The “change in circumstances” ground evidently consumed more time in the High Court than it had in the Environment Court but even so was secondary to the “new and important evidence” ground. Overall, I do not consider that a discount is warranted on this basis.

Auckland Council

[10]              Auckland Council took a limited role in the appeal. It was appropriate for it to abide on some issues. But it made submissions in opposition on other issues, as it was entitled to do. Having done so, it would have been exposed to an award of costs (at least in part) if the appeal were successful. I consider it is entitled to costs.

[11]              Auckland Council seeks 33 per cent of 2B scale costs. Given its limited role, I consider that a reduced costs award to Auckland Council of 25 per cent of scale costs is appropriate.

Deferral of enforcement

[12]              KPBL agrees that it is appropriate for costs to be determined now but any enforcement to be deferred to await the determination or other final disposition of the leave application/appeal, as occurred in Sealegs International v Zhang.5 I agree.

4      Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 at [21].

5      Sealegs International v Zhang [2018] NZHC 2956.

Result

[13]KPBL is entitled to 2B costs of $12,189 plus disbursements of $110, totalling

$12,299.

[14]Auckland Council is entitled to costs of $3,226.50.

[15]              Compliance with this costs award, or enforcement of it, is to await the determination or other final disposition of the application for leave to appeal, or appeal if leave is grant.

Gault J