Sutton v Canterbury Regional Council - [2015] NZHC 1000

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000573 [2015] NZHC 1000

BETWEEN
R W SUTTON AND OTHERS

Applicants

AND

CANTERBURY REGIONAL COUNCIL First Respondent

INFINITY INVESTMENT GROUP LIMITED AND ANOTHER

Second Respondents

Judgment: 12 May 2015

JUDGMENT OF GENDALL J (As to Costs)

SUTTON v CANTERBURY REGIONAL COUNCIL [2015] NZHC 1000 [12 May 2015]

Background

[1] On 27 February 2015, I gave judgment in this proceeding,1 such that the applicants (the Suttons and Lone Star Farms) were largely successful. Their application for judicial review was granted, the decision of the Canterbury Regional Council (the Council) in question was set aside and matters were referred back to the Council for a reconsideration. Costs were reserved, and I directed the parties to file memoranda on the question if they were unable to agree on any issue of costs between them.2

[2] They have been unable to agree and memoranda have now been filed by counsel as follows:

(a) Memorandum dated 18 March 2015 from counsel for the Suttons and

Lone Star Farms;

(b)Memorandum dated 25 March 2015 from counsel for the second respondents (Infinity); and

(c) Memorandum dated 10 April 2015 from counsel for the Council.

These memoranda have now been referred to me. As no party has expressed a wish to be heard on the matter, this decision is made based on the material before the Court.

[3] Counsel for the applicants, the Suttons and Lone Star has filed submissions seeking costs on a 2B basis against the second respondents Infinity only in the sum of $25,671.00 plus disbursements of $6,931.41.

[4] In response, Infinity denies that it should be held liable for the applicants’

costs, and further Infinity itself seeks costs here from the Council.

1 Sutton v Canterbury Regional Council [2015] NZHC 313.

[5] The Council opposes any award of costs against it. This is on the basis that it says it did not oppose the application to this Court for judicial review of its decision and also it gave notice it would merely abide the decision of the Court on the application.

Applicants’ (the Suttons’ and Lone Star’s) submissions on costs

[6] As I have noted, the Suttons and Lone Star as the successful parties here seek costs on a 2B basis against Infinity in the sum of $25,671.00 plus disbursements of
$6,931.41. The applicants however do not seek any award of costs against the Council. They also seek leave however to recover the expenses of Ms Keri Johnston as an expert witness. These expenses are a disbursement that requires the approval of the Court under r 14.12(2)(a)(i), not being a disbursement listed in r 14.12(1)(b).3
Recovery of this witness expense is sought on the basis that it is said this evidence was necessary to enable the Court to deal with the issue before it, and the costs are reasonable.

[7] Counsel for the applicants has submitted the following calculation of their costs calculated on a 2B basis and disbursements:

Costs

Daily rate $1,990.00

Step

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1000
Decision Date: 12 May 2015

CaseChat Overview and Summary

Sutton v Canterbury Regional Council was a proceeding for judicial review of a decision of the Canterbury Regional Council (the Council) in relation to a water resource consent. The applicants, the Suttons and Lone Star Farms, were largely successful. Their application for judicial review was granted, the Council’s decision in question was set aside and matters were referred back to the Council for reconsideration. Costs were reserved and the parties directed to file memoranda if they were unable to agree on any issue of costs between them. They were unable to agree and memoranda were filed by counsel for the Suttons and Lone Star, Infinity and the Council. The Suttons and Lone Star sought costs on a 2B basis against Infinity only, in the sum of $25,671.00 plus disbursements of $6,931.41. Infinity denied that it should be held liable for the applicants’ costs, and further sought costs from the Council. The Council opposed any award of costs against it. The Court held that the applicants were entitled to their costs and disbursements as claimed. The Council should be liable for 20 per cent of the applicants’ total 2B costs and disbursements. Infinity was liable for 80 per cent of the applicants’ total 2B costs and disbursements. The Court dismissed Infinity’s application for an order for the Council to meet Infinity’s costs.

Orders