The Canyon Vineyard Limited v Central Otago District Council

[2022] NZHC 2572

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-425-89

[2022] NZHC 2572

UNDER

the Resource Management Act 1991

IN THE MATTER

of an appeal under section 299 of the Resource Management Act 1991

BETWEEN

THE CANYON VINEYARD LIMITED

Appellant

AND

CENTRAL OTAGO DISTRICT COUNCIL

First Respondent

BENDIGO STATION LIMITED

Second Respondent

Hearing:	30 March 2022 (Submissions 6 May 2022)
Appearances:	L A Andersen KC and S Gaskell for Appellant P J Page and S R Peirce for Second Respondent No appearance for First Respondent
Judgment:	5 October 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs following unsuccessful application to strike out appeal)

THE CANYON VINEYARD LIMITED v CENTRAL OTAGO DISTRICT COUNCIL [2022] NZHC 2572
[5 October 2022]

[1]    On  12  April  2022  I  delivered  my   judgment   declining   Bendigo   Station Limited’s application to strike out The Canyon Vineyard Limited’s appeal against a decision of the Environment Court.1

[2]    I  concluded  the  judgment  by  saying  costs  should  follow  the  event  but  I reserved costs as Mr Andersen KC, counsel for the appellant, wished to apply for increased costs.

[3]    I apologise to counsel for the delay in dealing with their costs memoranda from 29 April 2022 and 6 May 2022. They have only just been referred to me.

[4]    I am satisfied that costs on a 2B basis without an uplift, together with disbursements, is the appropriate costs award in relation to the unsuccessful strike out application. I hold that view as Doogue J, in dismissing the substantive appeal,2 awarded 2B costs against the appellant. The strike out was no more complex than the substantive hearing. Accordingly, I adopt the same approach to costs as her Honour.

[5]    Nor is an uplift from scale called for. That the strike out application failed is why costs are appropriate and not of itself a justification for an uplift. Nor was the application hopeless or the pursuit of a meritless point – the grounds of the strike out were simply not accepted.

[6]    I also take into account that had the strike out application not been brought and the grounds relied on in the strike out application run in the substantive appeal, the appeal would still have been dismissed and in all likelihood the same costs outcome would have applied.

[7]    Accordingly, there is an order that Bendigo Station Limited is to pay to     The Canyon Vineyard Limited costs on a 2B basis ($6,214.00) plus disbursements ($142.65), being a total of $6,356.65.

1      The Canyon Vineyard Ltd v Central Otago District Council [2022] NZHC 749.

2      The Canyon Vineyard Ltd v Central Otago District Council [2022] NZHC 2458.

[8]In relation to the fixing of the costs, costs are to lie where they fall.

Associate Judge Lester

Solicitors:

Antony Hamel Solicitors, Dunedin (for Appellant) Mactodd Lawyers, Queenstown (for First Respondent)

Gallaway Cook Allan Lawyers, Dunedin (for Second Respondent)

Copy to counsel:

L A Andersen KC, Barrister, Dunedin (for Appellant) S Gaskell, Barrister, Dunedin (for Appellant)