Spillane v Cornwall Park Trust Board
[2022] NZHC 2638
•12 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-736
[2022] NZHC 2638
BETWEEN BRENT LESLIE SPILLANE
Plaintiff
AND
CORNWALL PARK TRUST BOARD
Defendant
Hearing: On the papers Counsel:
A J Sherlock and C D Hunter for Plaintiff
M E Casey KC and A E Murray for Defendant
Judgment:
12 October 2022
JUDGMENT OF PETERS J
[As to Relief and Costs]
This judgment was delivered by Justice Peters on 12 October 2022 at 3.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Hesketh Henry, Auckland
DLA Piper, Auckland
Counsel: M E Casey KC, Auckland
SPILLANE v CORNWALL PARK TRUST BOARD [2022] NZHC 2638 [12 October 2022]
[1] I issued a judgment on the substantive merits of this proceeding on 29 June 2022.1
[2] In [81] of that judgment, I deferred the issue of relief pending further submissions from the parties. I have since received memoranda from counsel. There is no objection to me dealing with the matter on the papers, which I now do.2
Relief
Declarations
[3] The plaintiff seeks declarations in terms of (a) and (b) of the second cause of action pleaded in his amended statement of claim of 17 May 2022. These declarations concern the agreement to lease of 6 May 2022 (“ATL”), referred to in the earlier judgment, between the defendant and a third party, Xytech Studio Management Co Ltd (“Xytech”). Pursuant to this agreement, the defendant agreed to lease to Xytech what is known and referred to as the Auckland Showgrounds land.
[4] By memorandum of 17 August 2022, counsel for the defendant, Mr Casey KC, informs me that the ATL was cancelled on 4 August 2022. Mr Casey submits that the declarations sought are neither appropriate given the findings in the judgment, nor required in any event in light of the cancellation.
[5] I consider it appropriate to make the following declaration, to reflect the findings made in the judgment:
The defendant contravened s 3(2) of the Cornwall Park Endowment and Recreation Land Act 1982 by entry into its agreement to lease with Xytech Studio Management Co Ltd dated 6 May 2022.
[6] This declaration is largely consistent with the declaration sought by the plaintiff in (a) of his second cause of action.
1 Spillane v Cornwall Park Trust Board [2022] NZHC 1527.
2 From counsel for the defendant dated 26 July, 17 August and 2 September 2022; and from counsel for the plaintiff dated 3 and 31 August 2022.
[7] I have not made a declaration that the defendant was in breach of trust by entering into the ATL. The power to lease the affected part of the Auckland Showgrounds was/is conferred by s 3(2) of the Cornwall Park Endowment and Recreation Land Act 1982 (“Act”). In my view, that is the provision the defendant breached by entering into the ATL, not the deed of trust.
[8] I decline to make the declaration sought in (b) of the second cause of action. Such a declaration is unnecessary and, in any event, Xytech was/is not a party to this proceeding.
Order sought in [8] of memorandum of counsel for the plaintiff of 3 August 2022
[9] I have considered [6] to [8] of the memorandum of counsel for the plaintiff of 3 August 2022. In [8], counsel seeks an order requiring the defendant to give the plaintiff 10 days written notice of its intention to enter into any new agreement, whether with Xytech or anyone else, relating to the use of the Auckland Showgrounds, together with a copy of the proposed new agreement.
[10] Counsel for the defendant opposes the making of the order sought. Amongst other things, counsel submits that the plaintiff is not entitled to advance notice of the defendant’s intentions, nor to any agreement into which it proposes to enter.
[11] The order sought was not pleaded and, in any event, I am not persuaded there is any basis on which to make it. I decline to do so.
“Secondary” and “primary”
[12] Counsel for the plaintiff has sought clarification of what I intended by the word “secondary” in [77] and [83] of my judgment.
[13] I am unable to provide any clarification. I am functus officio in terms of the merits and thus am unable to assist the parties in the manner sought.
Guidance sought by defendant
[14] In his memorandum of 17 August 2022, counsel for the defendant seeks guidance from the Court as to whether an option the defendant is presently considering for the use of the Auckland Showgrounds would comply with s 3(2) of the Act. That option is outlined in [14] of the memorandum.
[15] I decline to give the guidance sought. The proposal would have to be pleaded and declaratory relief sought. It is clear from the response of counsel for the plaintiff that the plaintiff does not accept the proposal is in accordance with the Act and thus any application would be contested.
Costs
[16]The plaintiff seeks costs in the proceeding on a 2C basis.
[17] In his memorandum of 17 August 2022, counsel for the defendant submits that I should decline to make an order for costs on the grounds in High Court Rules 2016, rr 14.7 (d) and (e). If he does not succeed in that submission, counsel submits that costs should be awarded on a 2B, as opposed to 2C, basis.
[18] Counsel for the defendant also submits that the plaintiff abandoned an application for an interim injunction pending the substantive hearing, and that the defendant should have costs in relation to that application.
High Court Rules 2016, rr 14.7(d) and (e)
[19] The plaintiff succeeded in the litigation and is entitled to costs in the usual way and in the appropriate sum unless there is some reason to decline or reduce those costs.
[20] Rule 14.7(d) permits the Court to decline costs or to reduce the sum otherwise payable if the party claiming costs, that is the plaintiff, has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing costs.
[21] The plaintiff pleaded three causes of action. The first was concerned with a short-lived state of affairs which I declined to address. The plaintiff succeeded on the
merits of the second. The third has now largely fallen away. Neither the first nor third causes of action would have significantly increased the defendant’s costs and thus r 14.7(d) is not established.
[22] Rule 14.7(e) applies if the proceeding concerned a matter of public interest and the party opposing costs, the defendant in this case, acted reasonably in the conduct of the proceeding.
[23] It is correct that the plaintiff contended he brought the proceeding as a matter of public interest. Equally, however, he made no secret of his commercial interest in the outcome.
[24] As to the second limb of r 14.7(e), it is fair to record my reservations about whether the defendant acted reasonably in its conduct of the entire proceeding.
[25] The plaintiff’s case as to the proper construction of s 3(2) of the Act, and that the ATL was in breach of that provision, plainly had merit and indeed proved to be correct. With respect to the defendant, on that particular issue, its case had no prospect of success once the historic documents were considered.
[26] In addition, Ms Llewellyn failed to put all relevant documents before the Court in her affidavit evidence, an omission that she did not explain. Also, some of the correspondence from the defendant’s solicitors to the plaintiff’s was both hostile and incorrect (see for instance the communications at pages 43 and 55 of bundle A to the plaintiff’s first affidavit of 9 May 2022). Counsel for the defendant will also recall the dissatisfaction that I expressed at the outset of the hearing as to the tone of parts of their written legal submissions.
[27] Given the above, there is no basis for declining or reducing costs under r 14.7(e).
[28] Taking all these matters into account, I am satisfied that an award of costs on a 2C basis is appropriate and so order. I am not satisfied that a 2B allocation would fairly reflect the time involved in the various steps required.
Interim relief
[29] I decline to award the defendant costs on the application for interim relief. I have looked back at the relevant documents on the Court file, and am not satisfied that the defendant would have incurred any significant costs in relation to that matter. I do, however, decline the plaintiff’s claim for the filing fee.
[30] I expect counsel to agree quantum, and the appropriate disbursements. In the unlikely event that some element of the costs/disbursements are not agreed, counsel may file short memoranda, not to exceed three pages.
Result
[31]I make the following declaration:
The defendant contravened s 3(2) of the Cornwall Park Endowment and Recreation Land Act 1982 by entry into its agreement to lease with Xytech Studio Management Co Ltd dated 6 May 2022.
[32]I award costs to the plaintiff on a 2C basis, subject to [29] above.
Peters J
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