Speargrass Holdings Limited v Van Bradenburg
[2022] NZHC 1261
•31 May 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-000036
[2022] NZHC 1261
UNDER the Resource Management Act 1991 IN THE MATTER
of an appeal under s 299 of the Resource Management Act 1991
BETWEEN
SPEARGRASS HOLDINGS LIMITED
Plaintiff
AND
AND
FREDERIKUS PETRUS MARIA VAN BRANDENBURG and DIANNE MARY
JACQUELINE VAN BRANDENBURG as
trustees of the FLAX TRUST First Respondents
QUEENSTOWN LAKES DISTRICT COUNCIL
Second Respondent
Hearing: Submissions: 31 March 2022, 26 April 2022, 2 May 2022,
3 May 2022 (2)
Counsel:
M G Colson QC and E J Watt for Appellant A N Riches for First Respondents
A H Balme for Second Respondent
Judgment:
31 May 2022
JUDGMENT OF OSBORNE J
(costs)
SPEARGRASS HOLDINGS LIMITED v VAN BRANDENBURG [2022] NZHC 1261 [31 May 2022]
Introduction
[1] By a judgment of this court dated 10 December 20211 (the 2002 Decision), a decision of the Environment Court, varying an earthwork consent (the High Court Judgment)2 was allowed – the 2020 Decision was quashed and an earlier decision of a Commissioner was reinstated.
[2] By the High Court Judgment, the first respondents were ordered to pay to the appellant the costs and disbursements of the appeal.3 This Court reserved the questions of costs and disbursements incurred in the Environment Court leading to the 2020 Decision.4
[3] This Court made no particular order in relation to the second respondent, whose counsel’s attendance had been excused for the hearing of the appeal in this Court.
The parties’ positions
Costs in the Environment Court
[4] Counsel for the respondents invited me to determine the issues of costs and disbursements incurred in the Environment Court in relation to the 2020 Decision, upon the basis that I may be best placed to determine the costs in the Environment Court proceedings given the detailed consideration of the Environment Court proceedings which was a necessary part of the appeal to this Court and the fact the Environment Court Judge has retired.
[5] I informed counsel that I would not determine the costs and disbursements of the Environment Court hearing but would remit those issues to the Environment Court for determination in accordance with its practice.
[6]An appropriate order will be made in that regard.
1 Speargrass Holdings Ltd v van Brandenburg [2021] NZHC 3391.
2 Flax Trust v Queenstown Lakes District Council [2020] NZEnvC 84.
3 High Court Judgment, above n 1 at [234](c).
4 At [234](d)
The costs and disbursements of the appeal in this Court
[7] Through Mr Colson QC, the appellant has calculated its scale costs (on a category 2 basis applying variously band B and C) at $35,431.75 and seeks a costs award on a 50 per cent uplift, totalling $53,957.62.
[8] The first respondents through Mr Riches submit that the costs of the appeal should be determined on a uniformly 2B basis. Mr Riches provides a calculation of
$21,631.75.
Discussion – Scale costs
[9] The proceedings had been appropriately determined to be category 2 proceedings for the purpose of r 14, High Court Rules 2016 (the Rules).
[10] To determine time allocations until Sch 3 of the Rules, both counsel appropriately referred to the same seven items, with the only difference being as to whether the time allocated should all be on a band B basis or on a mixture of bands B and C. The appropriate determination of that question turns on whether the step reasonably required a normal amount of time (band B) or a comparatively large amount of time (band C).5 The Court’s enquiry focuses on the complexity of the issues and the time involved in formulating arguments, not ordinarily on the length of the written synopses.6
[11] By any assessment, the issues involved on this appeal were complex. The 2020 Decision, which was the subject of the appeal, ran to 479 paragraphs (156 pages). The High Court Judgment commenced with a brief history of the decisions giving rise to the issues on appeal.7 The relevant decisions began in December 2011 and included, as well as decisions of the Council and Commissioner, two judgments of the Environment Court, an earlier judgment of the High Court, and a judgment of the Court of Appeal.
5 High Court Rules, r 14.5(2).
6 Ministry of Education v James Hardie New Zealand [2018] NZHC 2960 at [16].
7 Speargrass Holdings Ltd v van Brandenburg above n 1 at [3](a)-(k).
[12] In its notice of appeal, the appellant identified 11 questions of law arising from the 2020 Decision. While not all of those questions were ultimately pursued or required to be determined on the appeal, the High Court Judgment answered six of the questions in favour of the appellant, leading to the determination that the 2020 Decision must be quashed and the Commissioner’s decision reinstated.
[13] The complex history and range of issues involved in the appeal inevitably required a large amount of preparation and time for a number of steps, including the commencement of the appeal (item 52), the preparation of the case on appeal (item 55) and the preparation of written submissions (item 56).
[14] For the first respondents, Mr Riches submitted that the sheer number of grounds of appeal should not be determinative of whether particular items should be allocated on a band C basis. In his submission, there was a “simple focus” of the appeal namely, whether the Environment Court has misapplied the appropriate legal test and whether the appropriate burden of proof had been applied. In his submission, that was not an overly complicated exercise. Mr Riches submitted that, although the 2020 Decision was “voluminous at 158 pages”, such was not a reflection on the complexity of the appeal.
[15] I recognise that Mr Riches was not counsel at the appeal hearing (Mr van Brandenburg then presenting the first respondents’ submissions in person) and that Mr Riches’ appreciation of the complexity of the proceeding comes from a reading of the 2020 Decision and the High Court Judgment. Those decisions, by their nature, are distillations of a much larger body of evidence and submission. The contents of the 2020 Decision and High Court Judgment nevertheless point to the complexity of the issues and to some extent to the time that would have been involved in formulating arguments. Furthermore, I, as the Judge who was taken through the case on appeal and heard the submissions, am in a unique position to make the determination of the reasonable time required under r 14.5 of the Rules.
[16] The three items that the appellant claims on a band C basis each clearly fell within band C.
[17] I set out in Table A my determination of the costs that would be recovered by the appellant on a scale basis.
Table A
Costs on a 2B/C basis – High Court Appeal Step Description Days Amount Appeals 52 Commencement of appeal or cross-appeal 3.0
(Band C)
$7,170.00 10 Preparation for first case management
conference
0.4
(Band B)
$956.00 11 Filing memoranda for 2 x case management
conferences
0.8
(Band B)
$1,912.00 55 Preparation of Case on Appeal 2.0
(Band C)
$4,780.00 56 Preparation of written submissions 6.0
(Band C)
$14,340.00 57 Appearance at hearing for principal counsel 1.75
(Band B)
$4,182.50 58 Second and subsequent counsel if allowed by
court
0.875
(Band B)
$2,091.25 Total 2B/C Costs of High Court Appeal $35,431.75
[18] In addition to scale costs, the appellant was entitled to recovery of its single disbursement (the filing fee on the notice of appeal) namely $540.00.
Discussion – increased costs?
[19]An award of increased costs is provided for in r 14.6(3) of the Rules.
[20] The appellant invokes in this case r 14.6(3)(b)(ii) on the basis the first respondents contributed unnecessarily to the time or expense of the appeal by presenting arguments that were legally insupportable.
[21] In N R v M R, French and Cooper JJ, in a case where the Court of Appeal equivalent of r 14.6(3)(a)(ii) applied, held that the uplift should apply to all steps taken on the meritless appeal, rather than through an analysis of each step.8
[22] The appellant here asserts r 14.6(3)(b)(ii) applies because the first respondents presented their case in the Environment Court (leading to the 2020 Decision) on an incorrect legal basis, then opposed the appellant’s appeal to this Court when this Court’s earlier (2018) judgment meant that the Environment Court’s 2020 Decision was legally insupportable. As a subsidiary argument, Mr Colson submits this Court should take into account the repeated (“relentless”) attempts of the first respondents to pursue retrospective consent, forcing the first respondents to incur significant costs.
[23] The first respondents, through Mr Riches, oppose any uplift. Mr Riches rejects the proposition that the first respondents’ arguments lacked merit, noting that the first respondents in this Court “simply reiterated the Environment Court’s findings”, that Court clearly being of the view that its decision was in accordance with the law having regard to the facts.
[24] In my view, this is clearly not a case for increased costs. Rule 14.6(3)(b) contains a threshold requirement and then confers a discretion. The threshold requirement – said by the appellant to apply here because there was an argument that lacked merit – is not made out when the Environment Court in the 2020 Decision concluded not only that the first respondents’ case had merit but that it prevailed.
[25] Even had I found that the second respondent’s reasoning (and therefore the reasoning of the Environment Court in the 2020 Decision) lacked merit, I would not have considered in the circumstances of this case that the discretion to award increased costs should be exercised against the first respondents. Their opposition to the appeal, as litigants in person, was understandably based on the judgment of the specialist court.
8 N R v M R [2014] NZCA 623, (2014) 22PRNZ 636 at [52] by reference to r 53E(2)(b)(ii) Court of Appeal (Civil) Rules 2005.
[26] The appropriate outcome is that the appellant has its costs fixed on a scale basis.
Order
[27]I order:
(a)the costs and disbursements that the first respondents were ordered to pay to the appellant in the judgment dated 10 December 2021 are fixed in the sums of $35,431.75 and $540.00 respectively;
(b)there is no order as to the costs and disbursements of the appeal as between the first respondents and the second respondent; and
(c)issues as to the costs and disbursements of the appeal giving rise to the Decision of the Environment Court dated 19 June 2020 [2020] NZEnC 84) are remitted to that Court for determination of any costs issues that arise in relation to steps taken in that Court in the proceeding Env-2006-CHC-004 following the decision of the Court of Appeal dated 20 December 2019 [2019] NZCA 684.
Osborne J
Solicitors:
Bell Gully, Wellington Saunders & Co, Christchurch Wynn Williams, Christchurch
Copy to counsel:
M G Colson QC, Wellington
E J Watts, Barrister, Wellington
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