Whangapoua Beach Community Association v Thames-Coromandel District Council

[2024] NZHC 206

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000315

[2024] NZHC 206

UNDER

the Resource Management Act 1991

IN THE MATTER OF

an appeal under ss 299 and 300 of the Act and further appeal under s 305 of the Act

BETWEEN

WHANGAPOUA BEACH COMMUNITY ASSOCIATION

Appellant

PRESERVE NEW CHUMS FOR EVERYONE INCORPORATED
Further Appellant

AND

THAMES-COROMANDEL DISTRICT COUNCIL

Respondent

(continued)

Hearing:

[On the Papers]

Appearances:

J M Savage for Appellant

R B Enright for Further Appellant

A M B Green and R H Ashton for Respondent J Beresford for First Interested Party

R J Hollyman KC and L C Ford for Second Interested Party S H Gepp for Third Interested Party

Judgment:

19 February 2024

JUDGMENT OF EDWARDS J

[Costs]

This judgment was delivered by me on 19 February 2024 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

WHANGAPOUA BEACH COMMUNITY ASSOCIATION v THAMES-COROMANDEL DISTRICT COUNCIL [2024] NZHC 206 [19 February 2024]

AND  ROSS and DEIDRE MEAR

First Interested Party

NORTHERN LAND PROPERTY LIMITED

Second Interested Party

THE NEW ZEALAND COASTAL TRUST

Third Interested Party

[1]    In my judgment dated 18 October 2023, I allowed an appeal by both appellants (WBCA and PNC4E) from an interim decision of the Environment Court.1 The appeal was allowed insofar as it related to the identification of the Natural Character areas but was otherwise dismissed.

[2]    Both appellants seek orders of costs and disbursements. WBCA seeks $33,317 and PNC4E seeks $21,962.32. In both cases costs have been calculated on a category 2B basis in accordance with the High Court Rules 2016.

[3]    The orders sought are against the respondent and first and second interested parties on a joint and several basis. I shall refer to those parties as respondents in this judgment. Grounds raised in opposition to the claim for costs include the appellants’ lack of success on many of the appeal grounds; the overlap between the appeals; and the reasonableness of the costs and disbursements claimed.

[4]    The New Zealand Coastal Trust was a third interested party in the proceeding supporting the appeal on other grounds. It does not seek an order for costs and none of the parties seek an order for costs against it.

Should only one set of costs be awarded?

[5]    The respondents submit that only one set of costs should be awarded to both appellants given their common or overlapping interests.

[6]    Rule 14.15 of the High Court Rules provides that the court must not allow more than one set of costs, unless it appears to the court that there is good reason to do so, if several defendants defended a proceeding separately, and all or some of them could have joined in their defence.

[7]    There is no comparable provision for multiple appellants. However, in Independent Māori Statutory Board v Auckland Council, the Court ordered one set of costs in a resource management plan review hearing where the successful parties prevented disputed provisions from being introduced to a proposed Auckland unitary

1      Whangapoua Beach Community Association v Thames-Coromandel District Council [2023] NZHC 2899.

plan.2 Wylie J held that r 14.15 required the Court to exercise some caution in awarding costs in favour of multiple parties where there is overlap or a community of interest in their litigation positions.3 Given the significant common interest in that case, the Court awarded one set of costs which was then split with one-third payable to one party and two-thirds payable to the other, to reflect the latter party’s more active role in the hearing.4

[8]    The appeal and further appeal in this case raised common and overlapping issues. Both appeals were effectively presented as a single appeal with the same relief sought by each party. Counsel for the appellants responsibly divided the grounds of appeal between them and relied on the submissions made by the other.

[9]    I consider a single set of costs, uplifted by 30 per cent to account for the additional appeal, and an allowance for second counsel, should be awarded to both parties and split on a 50:50 basis.

Should costs lie where they fall or be reduced for failure to succeed on grounds of appeal?

[10]   Rule 14.7(d) of the High Court Rules provides that a Court may reduce costs where the successful party has failed in relation to an issue which has significantly increased the costs of the party opposing the costs.

[11]   The respondents submit that while the appellants were ultimately successful in the appeal they failed on several other grounds of appeal. The respondents submit that costs should be allowed to lie where they fall or that costs be reduced by 50 per cent in these circumstances.

[12]   I accept that the appellants’ success on appeal was limited in the sense that it only related to the Natural Character overlays and the consequences which flowed from the failure to identify or map them. That success did not extend to the

2      Independent Māori Statutory Board v Auckland Council [2017] NZHC 678.

3 At [8].

4 At [14].

Outstanding Natural Features and Landscape overlay, nor to other grounds of appeal (such as the approval of house sites).

[13]   Nevertheless, the success was on a primary ground of appeal which took up a significant part of the hearing time. The appeal ground on which the appellants succeeded required consideration of the process in s 293 of the Resource Management Act 1991 and the Environment Court’s decision in Vernon.5 These were complex areas of fact and law which ultimately led to the appellants’ success.

[14]   To order costs to lie where they fall in these circumstances would run counter to the principle that costs should follow the event.6 Even a 50 per cent reduction would be at odds with that principle. Overall, I consider a reduction of 10 per cent in costs reflects the lack of success in the appeal and the costs occasioned to the respondents as a result.

Are the steps and disbursements claimed reasonable?

[15]   There are several challenges to the steps claimed as part of the appellants’ calculation of costs.

[16]   Costs should be calculated in accordance with those steps in schedule 3 of the High Court Rules relating to appeals. As noted above, I allow for second counsel.

[17]   WBCA’s claim for steps 25, 34 and 36 are disallowed. Steps 25 and 34 do not relate to appeals, and nor do the remaining costs claimed under step 36. To allow those costs in these circumstances would undermine the certainty and predictability of the scale allowed for appeals. PNC4E’s claim for the preparation of the case on appeal under step 55 is also disallowed as the Council was required to prepare the case on appeal given the initial version did not comply with the Senior Courts Civil Electronic Document Protocol 2019.

5      Vernon v Thames-Coromandel District Council [2018] NZEnvC 76.

6      High Court Rules 2016, r 14.2(1)(a); and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [19].

[18]   The appellants are entitled to reasonable disbursements.. I disallow the claim for airfares claimed by PNC4E on the basis that counsel has a practice in Auckland.

Result

[19]   I award costs to each appellant against the respondent and first and second interested parties jointly and severally.

[20]Costs shall be calculated as follows:

(a)One set of costs shall be calculated in accordance with this judgment.

(b)Costs claimed under steps 25, 34, 36 and 55 are disallowed.

(c)An uplift of 30 per cent, and an allowance for second counsel, shall be applied to the single set of costs to allow for the second appeal.

(d)A discount of 10 per cent shall be applied to the single set of costs to account for those grounds of appeal which did not succeed.

(e)Costs shall be split between the appellants equally.

[21]   Each appellant is awarded their reasonable disbursements, but I disallow PNC4E’s claim for airfares.

Edwards J

Counsel/Solicitors:

J M Savage, Auckland Anderson Creagh Lai, Auckland R B Enright, Auckland

Richard Allen Law Associates Ltd, Auckland Brookfields, Auckland

Beresford Law, Auckland

R J Hollyman KC, Auckland Atkins Holm Majury Ltd, Auckland S R Gepp, Auckland

Bell Gully, Auckland