Newbury Holdings Ltd v Auckland Council
Decision No.  NZEnvC 32
BEFORE THE ENVIRONMENT COURT
Hearing on the papers
Environment Judge J A Smith sitting alone pursuant to Section 279 of the Act
In the Matter of appeals under section 120 and clause 14 of the First Schedule of the Resource Management Act 1991 (the Act)
Mr D Kirkpatrick and Mr K Littlejohn for Newbury Holdings
Limited and TR Group Limited
Mr B Loutit and K Read for Auckland Council
Application for full reimbursement of costs where applicant partially successful against councils — city council and regional council took conflicting positions over zoning — councils since merged into one council — Environment Court had invited council to reconsider its position and purchase property on several occasions — whether council's actions were blameworthy so that court should impose costs on it even though council was exercising its statutory function.
The issues were: whether the council's behaviour had been blameworthy so that costs should be imposed even though it was exercising its statutory functions; and, whether the applicants were to be fully reimbursed for the costs.
Held: The essence of the issue in this case was the failure of the council to settle, and consequently to advance detailed evidence on matters where settlement would have been possible. Although the courts would not normally impose costs against a council exercising of its statutory functions, the exception was where the council's actions could be considered to be blameworthy. In this case there were two bodies which took competing positions and rather than seeking to resolve the conflict, continued to argue the matter, essentially at the expense of the applicants. The actions of the former regional council in relation to the plans undermined the EC decision as to zoning.
The EC on several occasions invited the council to reconsider its position. The applicants also attempted to settle the issue, but the council refused to do so. This was unreasonable and led to significant delays and costs. This was therefore one of the rare cases where costs should be awarded against a council.
Although the applicants sought full reimbursement, there were aspects of the matter which did not warrant this. In particular, the applicants were not fully successful in appeal. It could not be said that the council's case was advanced inefficiently or with any desire to extend the hearing. The site clearly was of considerable complexity. The latter was a fact of which the applicants would have been aware when they purchased the property.
Costs were to be capped at $228,000 with the council to pay jointly to the applicants 60% of the costs claim.
A. The Council is to pay jointly to Newbury Holdings Limited and TR Group Limited 60% of the claims for cost certified by the Registrar as being applicable to this appeal upon proof of the relevant invoices and documentation. Said sum is to be paid to solicitors of Newbury Holdings Limited and TR Group Limited for costs of both.
B. Where that certified sum exceeds $228,000.00 then the costs payable are fixed at $136,800.00
C. Where the sum is less than $228,000.00 it shall be 60% of that figure.
D. Upon certification by the Registrar, the resulting quantum shall be enforceable in the District Court at Auckland if necessary.
In Decision No. , delivered in November 2011, this Court gave a series of decisions relating to appeals on both resource consents and plan matters.
The substantive decision has been appealed, but Newbury Holdings Limited (Newbury) and TR Group Limited (TR Group) have still made application for costs.
Given the complexity of this case, I have concluded that it is appropriate that the Court proceed to issue a costs decision at this point, notwithstanding the High Court appeal. Neither counsel has argued to the contrary, and I proceed to consider the application for costs.
Counsel for Newbury and TR Group has made an application for reimbursement of some $228,867.14, being their estimate of costs involved in these particular proceedings. For practical purposes I shall round that figure to $228,000.00. That fee includes counsel's legal fees, witnesses expenses, printing and copying. The applicant says that as the proceeding has covered several years it has not been possible, within the timeframe, to review all invoices and compile an affidavit to verify the total costs associated solely with the legal proceedings. The costs order, therefore, sought by these applicants is that the Auckland Council (the Council) pay the applicants' full costs, with that amount to be subsequently agreed between the parties or as certified by the Registrar.
I would be reluctant to make such an open-ended order, but it does appear to me appropriate that the Court could order a payment of a proportion of the certified sum up to a maximum of $228,000.00 upon proof of the actual quantum of costs being no less than $228,000.00 or a percentage of the lesser sum so established to the satisfaction of the Registrar. I now consider whether the Court should make an order and if so, for what proportion of that claimed.
We agree with the applicant that from statute and case law the considerations and exercise of the discretion for costs include:
[a] the degree of success or failure including at first instance;
[b] the nature and complexity of the case and the issues;
[c] the length of the hearing;
[d] the conduct of the parties; and
[e] the costs actually and reasonably incurred.
The Court has commonly adopted the case of 1 to establish further circumstances to...
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