Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council

[2023] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-110

[2023] NZHC 622

IN THE MATTER

of the Resource Management Act 1991

AND

IN THE MATTER

of an appeal under the Resource Management Act, s 209

BETWEEN

THE TRUSTEES OF THE MOTITI ROHE MOANA TRUST

Appellant

AND

BAY OF PLENTY REGIONAL COUNCIL

Respondent

Continued …

Hearing:	On the papers
Counsel:	J W Maassen and I F F Peters for the Appellant/Plaintiff M H Hill and R M Boyte for Respondent/Defendant
Judgment:	27 March 2023

JUDGMENT OF HINTON J

(Re: As to costs)

This judgment was delivered by me on 27 March 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Counsel/Solicitors:

J Maassen, Barrister, Wellington

Kaupare Law and Consultancy, Auckland Cooney Lees Morgan, Tauranga

Bay of Plenty Regional Council, Whakatane

THE MOTITI ROHE MOANA TRUST v BAY OF PLENTY REGIONAL COUNCIL [2023] NZHC 622 [27

March 2023]

CIV-2020-470-111

UNDER  the Judicial Review Procedure Act 2016 AND

IN THE MATTER of an application for judicial review

concerning a statutory power of decision under the Resource Management Act 1991

BETWEEN                THE TRUSTEES OF THE MOTITI

ROHE MOANA TRUST

First Plaintiff

NGĀTI MĀKINO HERITAGE TRUST

Second Plaintiff

TE MARU O NGĀTI RANGIWEWEHI

Third Plaintiff

ANDBAY      OF     PLENTY     REGIONAL COUNCIL

Defendant

[1]                 On 1 August 2022 I issued judgment in favour of the Bay of Plenty Regional Council in this proceeding and said the Council was entitled to costs on the appeal and the judicial review application. If the costs could not be agreed, counsel were to file submissions within 15 working days and Motiti Rohe Moana Trust (MRMT) within 10 working days thereafter.

[2]                 On 22 August 2022, the Council filed submissions waiving any claim to costs on the judicial review application (which it calculated at $30,592) and claiming costs of $19,000.50 on the appeal. These costs were calculated on a 2B basis, the proceedings having been so categorised by Minute of Muir J dated 1 December 2020.

[3]No submissions were filed by MRMT.

[4]                 In the interim MRMT applied for leave to appeal to the Supreme Court against my decision. That application was dismissed on 13 December 2022 and costs ordered in favour of the Council in the sum of $2,500.

[5]                 The Registrar at the Tauranga Court followed up the issue of costs in this Court with an email to counsel, dated 16 December 2022. That email records:

On 22 August, counsel for the Council filed their submissions as to costs in these proceedings (see attached). The final paragraph of Justice Hinton’s judgment set a timetable for submissions – 15 working days for the Council and a further 10 working days for the Motiti trustees. It may be that the Leave Application before the Supreme Court explains why there has been no response submissions on costs, but the Supreme Court’s decision issued earlier this week.

I have now forwarded the Council’s submissions to Justice Hinton for determination of costs in the High Court. Please advise if the Court should still expect to receive submissions in reply.

[6]No submissions have been received from MRMT nor any reply to that email.

[7]                 Counsel for the Council have written several times requesting a costs decision issue.

[8]                 I now proceed on the basis that MRMT does not wish to be heard as to costs. I see no issue with the costs as calculated by the Council and as noted they are

materially less than ordered. Accordingly, I order that MRMT pay costs to the Council in the sum of $19,000.50.

[9]                 MRMT has paid security for costs into Court in the amount of $1,195. I direct this sum be paid out to the Council in partial satisfaction of the costs award.

Hinton J