TFG Society Incorporated v Chief Executive of Land Information New Zealand
[2014] NZHC 1196
•6 June 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2013-485-3581 [2014] NZHC 1196
BETWEEN TFG SOCIETY INCORPORATED
Applicant
AND
THE CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND First Respondent
AND
BAYWA AKTIENGESELLSCHAFT Second Respondent
AND
TURNERS & GROWERS LIMITED Third Respondent
Hearing: On Papers Counsel:
I T F Hikaka and F Whyte for Applicant
K G Stephen and S S Eccles for First Respondent
J B M Smith QC and G M Richards for Second Respondent
S P Pope and E L Rae for Third RespondentJudgment:
6 June 2014
COSTS JUDGMENT OF SIMON FRANCE J
[1] The parties are unable to agree on costs and have filed memoranda. I deal with the issues in turn.
Preparation of authorities bundle
[2] It appears from the memoranda that this was undertaken by the second and third respondents. They are entitled to recover according to scale. The first respondent contributed time, and should receive some compensation for what was a
sensible course of conduct. I allow the first respondent $500.
TFG SOCIETY INC v LAND INFORMATION NZ [2014] NZHC 1196 [6 June 2014]
Second counsel
[3] I do not consider the first respondent should receive second counsel costs. It was not a complex matter. The position of the second and third respondents is different. I directed they be treated as one for the purposes of costs but for the reasons advanced in their memoranda, I agree costs of a second counsel is an appropriate response to the need for each party to be represented.
Travel costs
[4] I again accept the submissions of the second and third respondent. The third respondent is a large Auckland based company and it could be expected Auckland counsel would be used (as indeed are the plaintiff’s counsel).
Increased costs
[5] The claim made by the respondents is that the claim lacked merit from its inception. It is appropriate in my view to be cautious in assessing after the event the merits of an unsuccessful case because it is inevitably an assessment made with hindsight and coloured by the views that underlie the judgment already given. However, it is fair to observe that early into the hearing of this case I expressed puzzlement as to the point of the proceedings given the limited relief that was being sought. The claim took no recognition of the capacity of the first respondent to continually monitor the second respondent’s compliance with the terms of its consent.
[6] For this reason I consider that in terms of r 14.6(3)(b)(ii), the plaintiff can be said to have pursued an argument that lacks merit, and to have done so to an extent that merits an award of increased costs. The respondents seek a 50 per cent uplift,
and refer to Holdfast NZ Ltd v Selleys Pty Ltd.1
1 Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 883.
[7] The plaintiff’s opposition seeks to identify points of merit, and suggests the judgment did not say the case was entirely lacking in merit. The fact that the judgment may not have expressed greater criticism is not reflective of my assessment of the inherent lack of merit. Nor do I accept the suggestion that there was a public interest dimension to the proceedings in clarifying the obligations of the regulator. It was a fact specific inquiry into whether what was submitted to the regulator was a Report satisfying the consent holder’s obligation to report. Finally, as noted I am particularly influenced by my view that, even putting to one side the lack of strength in the arguments, there was no apparent point to the relief sought.
[8] Accordingly, I accept the respondents’ application and award a 50 per cent increase on scale costs.
[9] Finally, in relation to paragraphs 12 and 13 of the plaintiff’s memorandum,
the respondent is entitled to claim scale costs on the preparation of the memorandum.
Simon France J
Solicitors:
LeeSalmonLong, Auckland
Russell McVeagh, AucklandCrown Law, Wellington
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