SKP Incorporated v Auckland Council

[2021] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA387/2020
 [2021] NZCA 5

BETWEEN	SKP INCORPORATED Applicant
AND	AUCKLAND COUNCIL First Respondent KENNEDY POINT BOATHARBOUR LIMITED Second Respondent

Court:	Brown and Clifford JJ
Counsel:	J D K Gardner-Hopkins for Applicant M C Allan and R K Smith for First Respondent P F Majurey and V N Morrison-Shaw for Second Respondent
Judgment: (On the papers)	5 February 2021 at 11.30 am

JUDGMENT OF THE COURT
(Costs)

The applicant is to pay the respondents one set of costs in the amount of $3,346.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

1. On 2 December 2020 the applicant’s request for leave to bring a second appeal was declined in a decision determined on the papers.[1]  Neither respondent sought an order for costs in the written submissions which they filed.  However they belatedly do so now, each seeking an award of costs of $3,346.[2] 

   [1]SKP Inc v Auckland Council [2020] NZCA 610.

   [2]$946 for preparation of a memorandum in opposition and $2,390 for preparation of written submissions.

2. The applicant opposes the making of any award of costs because it submits it is reasonable to infer that the Court deliberately declined to order or to reserve costs (in which event the Court is said to be functus officio).  In the alternative the applicant contends only one set of costs should be payable.  It further submits there should be no costs awarded in favour of the Council in view of findings made by the Māori Appellate Court in what are described as related proceedings.

3. Where the Court refuses leave to appeal an applicant will normally be liable for costs:  r 53G(1) of the Court of Appeal (Civil) Rules 2005.  The omission of the respondents to seek an order for costs in their submissions does not preclude their now applying.  Nor does this Court lack jurisdiction to make an order for costs in that event.

4. We do not consider that there are any reasons why the applicant should not pay costs in accordance with the principle stated in r 53A(1)(a).  However we are not satisfied that on the application for leave to bring a second appeal two sets of costs are justified, notwithstanding the second respondent’s submission that it was appropriate for it to take an active role.  One set of costs will suffice.

5. The applicant is to pay the respondents one set of costs in the amount of $3,346.

Solicitors:
Greenwood Law Ltd, Waiheke Island for Applicant
Brookfields Lawyers, Auckland for First Respondent
Atkins Holm Majurey, Auckland for Second Respondent