ZYXCBA Developments Ltd v Auckland Council - [2015] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2306 [2015] NZHC 2224

UNDER the Declaratory Judgments Act 1908

BETWEEN

ZYXCBA DEVELOPMENTS LIMITED Plaintiff

AND

AUCKLAND COUNCIL Defendant

Hearing: On the papers

Counsel:

M E Casey QC and A Davidson for the Plaintiff
D J Neutze and M C Allan for the Defendant

Judgment:

16 September 2015

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 16 September 2015 at 10.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
M E Casey QC, Barrister, Auckland
P Castle, Castle Brown, Auckland
D J Neutze, Brookfields, Auckland
M C Allan, Brookfields, Auckland

ZYXCBA DEVELOPMENTS LIMITED v AUCKLAND COUNCIL [2015] NZHC 2224 [16 September 2015]

[1] In my judgment of 23 June 20151 I declined the declarations sought by the plaintiff relating to the approach which should be followed by valuers in assessing the value of reserve land which vested in the defendant following lodgement of a subdivision plan by the plaintiff.

[2] In regards to costs, I indicated:2

The defendant is entitled to costs which, absent any special considerations of which I am unaware, I would award on a 2B basis (one counsel). In the event costs cannot be settled by agreement, brief memoranda may be filed. These are to be exchanged in draft before filing so as to limit areas of disagreement.

[3] I have now received memoranda from counsel indicating that they have not been able to resolve costs and detailing their areas of disagreement.

Defendant’s application for costs

[4] The defendant seeks increased costs of up to 50 per cent for the following stated reasons:

(a) The defendant repeatedly raised concerns as to the appropriateness of the plaintiff’s declaratory judgment proceeding in resolving the core dispute between the parties;

(b)The defendant also proposed other more efficient means of resolving the dispute, such as by referring the dispute to the Land Valuation Tribunal or arbitration;

(c) Associate Judge Bell, in a minute following the first case management conference, expressed concern about the plaintiff’s piecemeal approach to the calculation of the compensation claim and gave a
“costs warning” to the plaintiff;

1 ZYXCBA Developments Ltd v Auckland Council (No3) [2015] NZHC 1412.
2 At [135].

(d)The final judgment shared Associate Judge Bell’s concerns regarding the suitability of the declaratory judgments procedure to the issues raised in this proceeding;

(e) The plaintiff decided to pursue the declaratory judgments procedure in the face of the strong contrary indications from both the defendant and Associate Judge Bell;

(f) A “fundamental difficulty” with the plaintiff’s approach was the lack of any valuation based on the pro rata formula or any of the approaches by which it said the value of the land is captured; and

(g) The plaintiff pursued arguments that lacked merit.

[5] Alternatively, if increased costs are not awarded, the defendant seeks scale costs in the sum of $29,253, together with disbursements of $21,702. Contrary to the plaintiff’s view, the defendant considers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ZYXCBA Developments Ltd v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 2224
Decision Date: 16 September 2015

CaseChat Overview and Summary

ZYXCBA Developments Limited, the plaintiff, and the Auckland Council, the defendant, were before the High Court of New Zealand in Auckland Registry in a case that revolved around the interpretation of a rule concerning the assessment of the value of reserve land. The plaintiff had sought declarations relating to the valuation of land that had vested in the defendant after a subdivision plan was lodged by the plaintiff. The court had declined the declarations sought by the plaintiff, and the matter of costs arose for determination.

The legal issues before the court included whether the defendant was entitled to increased costs under Rule 14.6 of the High Court Rules, whether the defendant was entitled to claim costs for a second case management memorandum, a second affidavit by Mr Harland, and second counsel, and whether the defendant was entitled to claim disbursements for the actual fees of its expert valuer, Mr Delbridge.

In its judgment, the court held that increased costs were not appropriate as the reasons provided by the defendant were all matters that the court was already aware of when it gave its costs indication. The court found that the second case management memorandum was helpful and entitled the defendant to claim costs for it. However, the court declined to award costs for the second affidavit by Mr Harland as it did not materially assist the court. The court also found that there was nothing atypical about the litigation to warrant an allowance for second counsel. Lastly, the court allowed the defendant to claim disbursements for Mr Delbridge’s actual fees as they were reasonably necessary and reasonable in amount.

The final orders of the court were that the defendant was to be awarded costs in the amount of $25,671 and disbursements as claimed in items 13-17 of Schedule A annexed to the defendant’s submission, which totalled $21,702 (GST inclusive).

Orders