Young v Attorney-General

[2021] NZHC 1359

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000110

[2021] NZHC 1359

BETWEEN

STEVEN RICHARD YOUNG

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:	On the papers
Appearances:	A R B Barker QC and J Moss for Applicant K G Stephen and H T N Fong for Defendant
Judgment:	10 June 2021

JUDGMENT OF DUNNINGHAM J

RE:  Costs Decision

This judgment was delivered by me on 10 June 2021 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]    The  defendant,  the  Crown,   applies   for   costs   against   the   plaintiff,   Mr Steven Young, following its successful defence of Mr Young’s claim in nuisance.1 In my judgment I indicated that costs should follow the event and that 2B costs were appropriate, but allowed the parties to file memoranda if they were unable to agree on costs.2

1      Young v Attorney-General [2020] NZHC 463.

2 At [130].

YOUNG v ATTORNEY-GENERAL [2021] NZHC 1359 [10 June 2021]

[2]    The parties have been unable to agree on costs. The Crown seeks costs, largely on a 2B basis, with some adjustments. Mr Young submits that costs should lie where they fall.

Background

[3]    Mr Young brought a claim in nuisance against the Crown alleging there was an ongoing rockfall hazard constituting an actionable nuisance on Crown-owned land adjacent to his property. He sought a declaration that the Crown implement extensive protective works or provide damages for his loss.

[4]    I found there was an actionable nuisance and the Crown had a measured duty to do what was reasonable in all the circumstances. However, I refused to grant a declaration that the Crown implement protective works because the proposed works were neither practicable nor cost effective, and so were unreasonable in the circumstances. I found the Crown had discharged its duty by making the hybrid red zone offer (the offer) to purchase Mr Young’s land in 2015.

Where should costs lie?

Mr Young’s position

[5]    Mr Barker QC, for Mr Young, submits costs should lie where they fall because the economic effect of the judgment is analogous to a successful claim for damages of

$1,299,3833 (the value of the offer) as the land in its current state has no value.4 If the

judgment was framed in those terms, Mr Young would be entitled to costs, subject to reductions to account for the low quantum awarded compared to that sought and any Calderbank arguments.5

[6]    Second, Mr Barker submits it is inappropriate to award the Crown costs because the Crown was successful on an issue it did not argue. The Crown submitted the measured duty was to provide access for Mr Young to enter his property and used

3      That is the land value of $1,050,000 plus the value of the Wong and Jamieson houses ($1,040,000) less the EQC payment to the Wongs ($67,734) less the EQC land payment ($792,883).

4      Young v Attorney-General, above n 1, at [104].

5      Weaver v Auckland…