Turner v Attorney-General sued as Department of Building and Housing (Weathertight Services) HC Auckland CIV-2011-404-003968

[2011] NZHC 1787

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003968

BETWEEN  PETER WAYNE TURNER Applicant

ANDATTORNEY-GENERAL SUED AS DEPARTMENT OF BUILDING AND HOUSING (WEATHERTIGHT SERVICES)

First Respondent

ANDPETERS TRUSTEE COMPANY LIMITED

Second Respondent

ANDAUCKLAND CITY COUNCIL (NOW AUCKLAND COUNCIL)

Third Respondent

ANDNORMAN WILTON Fourth Respondent

ANDSTANLEY ARMON Fifth Respondent

ANDBARFOOT AND THOMSPON Sixth Respondent

Hearing:         On the papers

Judgment:      16 December 2011 at 12:30 PM

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 16 December 2011 at 12:30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date......................................

Solicitor:             Crown Law – R Chan – Email: [email protected]

Minter Ellison Rudd Watts – S C Price – Email: [email protected]
Heaney & Co – P Robertson – Email: [email protected]
McElroys – A Priaulx – Email: [email protected]

Counsel:             D R Bigio – [email protected]

TURNER V ATTORNEY-GENERAL & ORS HC AK CIV-2011-404-003968 16 December 2011

[1]      Peter Wayne Turner was named as a respondent in proceedings brought under the  Weathertight  Homes  Resolution  Services Act  2006  (WHRS Act)  by  Peters Trustee Co Ltd (PTC).  He applied successfully for judicial review of the decision by the Department of Building and Housing (DBH) that the claim satisfied the criteria under the WHRS Act.[1]   Mr Turner now seeks costs against both the DBH and PTC.

[1] Turner v Attorney-General & Ors HC Auckland CIV-2011-404-003968, 7 October 2011.

[2]      Although a successful party is ordinarily entitled to costs, both the DBH and PTC oppose the costs application and each has asserted reasons that the usual rule should not apply in this case.

Department of Building and Housing

Costs

[3]      Mr Turner advanced his application on the basis of two errors by the DBH. He succeeded on only one of these.  Ms Chan, for the DBH, submitted that as the argument had been raised very late, did not require evidence and was narrow in scope, costs should lie where they fall.  The fact that a party succeeds on only one argument and not another does not necessarily preclude it from recovering costs.

[4]      Mr Turner’s successful argument related to the DBH’s decision to accept the claim initially made in the name of PTC’s shareholders, Mr and Mrs Peters, and to subsequently amend the name of the claimant to PTC.  This issue was raised very late.   Mr Turner did not seek leave to amend his statement of claim to allege this error until the telephone conference on 12 September 2011, the week before the hearing,  notwithstanding  that  the statement  of claim  had  already been  amended twice.  The issue was narrow in scope and did not require any evidence.  I held that the DBH had erred in accepting the claim lodged by Mr and Mrs Peters and had no power to amend the name of the claimant.

[5]      The unsuccessful argument was that the DBH had applied the wrong test to

the “built” criterion.  In anticipation of that argument succeeding Mr Turner adduced

evidence intended to show that the house had been completed earlier than the DBH’s

decision suggested.  This included evidence, directed to when various work had been carried  out  on  the  building,  which  took  up  a  substantial  amount  of  attention. Because my decision regarding the name of the claimant effectively determined the application it was, strictly, unnecessary for me to go on to consider the question of when the house had been built.   However, I did make comments regarding the interpretation of the “built” criteria in the WHRS Act and concluded that there had been  no  error  by  the  DBH  in  the  approach  it  took  to  deciding  this  aspect  of eligibility.  It is evident from those comments that Mr Turner’s second limb would have failed.

[6]      Ms Chan submitted that the DBH incurred significant expense in producing evidence on the “built” issue which assisted both the other parties but which was ultimately unnecessary. Ms Chan also pointed out that Mr Turner was seeking costs against it for a case management conference of which it had not been advised and for the appearance of two counsel which, she submitted, was not necessary given the nature of the proceeding.

[7]      Ms Gordon, for Mr Turner, sought to downplay the fact that the application succeeded only on the issue regarding ownership of the property on the basis that my judgment merely dismissed PTC’s argument regarding the “built” criterion and did not hold against Mr Turner’s case in any way.  This is a rather puzzling submission; it is obvious from my conclusions regarding the “built” criteria that Mr Turner’s argument on this point would inevitably fail.   It is clear that, had Mr Turner not belatedly  realised  that  the  issue  over  ownership  of  the  property  existed  his application would have failed entirely.  This is significant because of the extensive affidavit evidence Mr Turner adduced, which required a response from the DBH and PTC.

[8]      Ms Gordon also submitted that the extent of the evidence adduced on the “built” issue should not be held against Mr Turner in relation to costs because it was not adduced strictly in relation to the judicial review but was relevant to the question of remedy, in the event the judicial review was considered relevant.  I do not find that submission at all convincing.  It is of no comfort to the parties or the Court to suggest that extensive evidence to which the parties had no choice but to respond

would only be relevant in the event of the argument succeeding.  I am satisfied that the DBH was forced to respond to very extensive evidence on an argument which had no prospect of succeeding.  I consider that, because the argument on which the applicant did succeed was so narrow and raised so late, it would be unfair to impose costs in respect of it. Further, as the DBH had to incur the cost of responding to evidence adduced unnecessarily I consider that there should be no award of costs against it.

Disbursements

[9]      Although I do not consider that costs should be awarded against the DBH

there is no reason that it should not meet Mr Turner’s reasonable disbursements.

[10]     Mr Turner has sought substantial disbursements which are also challenged by the DBH.  Of these, the disbursements for filing fees ($517.69), setting down and hearing fees ($2,416.80), service costs ($51.88) and the sealing fee ($48.30) are unobjectionable and will be allowed as against the DBH.

[11]     The DBH objects  to  $1,298.00  sought  for photocopying  costs  paid  to  it pursuant to an Official Information Act request made in lieu of discovery.  The DBH objects to this part of the claim on the basis that discovery is not as of right in a judicial review application and would have been unlikely to have been allowed in this case because the appropriate course was for the decision-maker to append the relevant documents to her affidavit (which was done).  Nor could it truly be said that these costs were disbursements in this proceeding.

[12]     In response Ms Gordon has submitted that these expenses fall within the definition of a disbursement under r 14.12 of the High Court Rules as an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately for legal professional services.   She submits that these costs were specific to the conduct of the proceeding and incurred for the purpose of it.  I accept, particularly given the timing of the request, that this item is properly to be regarded as a disbursement in the present case.

[13]     The  DBH  also  objects  to  the  claim  of  $1,300.424  for  the  cost  of photocopying the bundles. This included colour pages at 40 cents each.   I do not regard the per page cost in itself as excessive.   I do, however, accept Ms Chan’s objection to paying the cost of the colour pages which directly related to evidence on the “built” issue which was unnecessary.   The photocopying disbursement will therefore be reduced by $380.88 to reflect that item, producing a permitted disbursement for photocopying bundles of $919.54.

[14]     Mr Turner also claims $8,344.33 for the expert witness fees.  This raises the same issue as I have already discussed regarding the need for evidence on the “built” issue.  Mr Turner adduced evidence, including evidence from Mr Dean directed at precisely when various parts of the building work were completed.  For the reasons I have already outlined I consider that this approach was misconceived and do not intend to allow the expert witness fees as a disbursement.

[15]     Total disbursements are payable by the DBH of $5,252.21.

Peters Trustee Company Ltd

[16]     PTC also resists an award of costs against it.    It  makes the same point regarding the nature of the successful ground as was made on behalf of the DBH and I do not need to repeat my conclusion on that aspect.

[17]     The major ground of PTC’s opposition, however, is that, although PTC was undoubtedly affected by any error in the decision-making process, no relief was sought against it and there was no assertion of wrongdoing against it.   Mr Bigio submitted  that  PTC’s  position  was  identical  to  that  of  Lab  Tests  in  Diagnostic

Medlab v ADHB & Ors.[2]  In Medlab, as in this case, the plaintiff sought judicial

[2] Diagnostic Medlab v ADHB & Ors HC Auckland CIV-2006-404-4724, 13 June 2007 at [12]-[17].

review in respect of a decision made by the ADHB and other District Health Board in favour of Lab Tests.  It did not, however, seek any specific relief against Lab Tests and Lab Tests’ own conduct was not in issue.   Lab Tests participated fully in the hearing including adducing evidence but Asher J refused to make a costs order

against it following his substantive decision in favour of Diagnostic Medlab:

[13]     There is no general principle that costs orders should not be made against the beneficiaries of an administrative decision who have been unsuccessful in judicial review proceedings concerning the decision. Sometimes  it  may  be  that  the  decision  beneficiaries  take  on  the  whole burden of the defence, with the decision-maker abiding the decision of the Court.  In such a situation a decision beneficiary may well be liable for costs. Here, however, the DHBs took the burden of defending their decision and the Lab Tests position has essentially been one of support.   In Barrett v Wellington City Council HC Wellington CP31-00 25 July 2000 Chisholm J stated at [7] that it was “hardly surprising” that a party that had benefited from a  decision  made  by a  decision-maker,  supported the decision in  a subsequent judicial review proceeding challenging that decision.   As was noted, that affected party is not “thereby shouldering responsibility” for that decision.

[18]     I accept Mr Bigio’s submission that PTC is in the same position as Lab Tests was in the Medlab case.  PTC was affected by the decision of DHB and would be affected by the outcome of the judicial review proceedings.   It also supported the DBH including advancing an argument on the “built” criterion.  But given my views regarding that issue and the fact that PTC’s own conduct was never in issue I see no basis on which to impose an order of either costs or disbursements against it.

Result

[19]     There will be no costs award against either the DBH or PTC.

[20]     The DBH will, however, pay the reasonable disbursements of the plaintiff, which I find to be $5,252.21.

P Courtney J