Woolley v Marlborough District Council

[2019] NZHC 136

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV 2018-406-25

[2019] NZHC 136

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

An application for a Mandatory Injunction and a Declaration

BETWEEN

PHILIP JOHN WOOLLEY

Applicant

AND

MARLBOROUGH DISTRICT COUNCIL

Respondent

AND

CONSTELLATION BRANDS NZ LIMITED

Intervener

On the papers
Judgment:	12 February 2019

JUDGMENT OF MALLON J

(Costs)

[1]    The applicant seeks judicial review of the respondent’s (the Council’s) decision not to make a transfer of a water permit from one parcel of land to another under s 136 of the Resource Management Act. As part of this review, there is a factual issue concerning whether the water permit has lapsed.

[2]    Following a case management conference on 3 September 2018 a direction was made for Koha Trust Holdings Ltd (Koha) to be served with the proceedings.1 That direction was made without the Judge determining whether Koha had a potential

1      Wooley v Marlborough District Council HC Blenheim CIV-2018-406-25, 4 September 2018, Minute of Cooke J at [16(a)].

WOOLLEY v MARLBOROUGH DISTRICT COUNCIL [2019] NZHC 136 [12 February 2019]

interest in the proceeding, but so that Koha could review its position and make any application to be involved if appropriate.2

[3]    Koha decided to apply to be joined (although it did so outside the timetable set by the Judge). The applicant filed a notice of opposition and an affidavit in support of that opposition. Two subsequent case management conferences took place. Shortly after the second of those conferences, Koha filed a memorandum advising that it no longer sought to be joined to the proceedings. The applicant seeks costs against Koha. Koha opposes a costs order and, if one is to be made, contends the applicant’s claim is excessive.

[4]    Rule 15.23 of the High Court Rules 2016 provides that a plaintiff who discontinues a proceeding must pay the costs to the defendant of the proceeding up to the point of discontinuing unless the parties agree or the Court orders otherwise. The parties are agreed that rule 15.23 of the High Court Rules applies by analogy.3 The presumption in favour of costs to the defendant is intended to provide a certain and predictable outcome. It can be displaced, however, if it is just and equitable to do so.4

[5]    Koha submits costs should lie where they fall. It says there was no merit in the applicant’s opposition to Koha’s joinder application. It says it is obvious that the Council’s actions have directly affected its rights. It says that is because, if Council had taken the position that the applicant’s permit had lapsed, it is likely Koha’s application for resource consent for a permit would have succeeded. It also says that, if the applicant’s permit is found to have lapsed, the applicant has no live resource consent applications and it will remain possible for Koha to secure water and it intends to pursue this.

[6]    The applicant says Koha was forced to withdraw its application for a water permit when it unsuccessfully challenged the validity of the applicant’s water permit in the Environment Court. Having been unsuccessful, Koha withdrew its application for a water permit. The applicant says this means Koha is no longer in the queue for

2 At [13].

3      I-Health Limited v Isoft NZ Limited HC Auckland CIV 2006-404-004502, 31 July 2009, costs judgment of Sargisson AJ.

4      McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.23.01].

a replacement water permit if the applicant’s permit is invalid. As a result the applicant says Koha did not have standing at the time it made its joinder application. The applicant also says Koha is incorrect about whether the applicant has other live actions.

[7]    In determining whether it is just and equitable for costs to lie where they fall despite the presumption in rule 15.23, the Court will not consider the merits of the parties’ position unless they are so obvious they should influence the costs outcome.5 In my view, in light of the competing positions advanced, the merits are not so obvious that they should displace the presumption. There are no other materially relevant considerations in this case which should displace the presumption either.

[8]    Initially the applicant sought costs totalling $8,731. This was made up of: item 23 (filing opposition to interlocutory application) at 0.6 days; item 13 (appearances at two case management conferences) at 0.6 days; and item 30 (preparation of affidavit) at 2.5 days. Each item was calculated on a category 2B basis.

[9]    Koha submits the applicant’s claim is excessive because: Koha had not filed its joinder application by the time one of those conferences and the appearance at the other case management conferences was necessary even had Koha not made its joinder application; and there should be no allowance for the preparation of the affidavit as this is part and parcel of the allowance for filing the opposition and is in any event excessive and would exceed the time actually spent on the matter.

[10]   After filing its costs submissions, the applicant became aware of the Alpine South Fishing Limited (in receivership) v Choi.6 In light of that decision it acknowledges item 30 does not apply to interlocutory applications. In place of its claim for that item, it seeks costs for item 23 on a category 2C basis. It also submits it should have an allowance of 0.5 days for its submissions on costs.

[11]   I consider category 2C for item 23 is too high in this case. That provides an allowance of two days. As costs are intended to provide a two thirds’ recovery of reasonable costs, that allowance would be appropriate if the notice of opposition and

5      Above.

6      Alpine South Fishing Limited (in receivership) v Choi [2018] NZHC 3253.

the affidavit took three days to complete. That seems too high for a straightforward notice of opposition and a short supporting affidavit. I therefore consider the allowance for item 23 should be category 2B, as with the other items.

[12]   I accept Koha’s submission that there should be an allowance for just one case management conference. Koha had not filed its joinder application by the time of the first of those and the applicant would have been required to participate at the second conference in any event. I do not allow the applicant costs on its costs’ submissions. Although it has succeeded in obtaining an order for costs, it is substantially less than it claimed.

[13]   Accordingly, Koha is ordered to pay costs and disbursements to the applicant of $2,117. This is comprised of: item 23 (0.6 days) plus item 13 (0.3 days) at the category 2B rate of $2,230, together with a filing fee disbursement of $110.

Mallon J