Newbury Holdings Ltd v Auckland Council

• Jurisdiction: New Zealand
• Judge: J A Smith
• Judgment Date: 22 February 2012
• Neutral Citation: [2012] NZEnvC 32
• Date: 22 February 2012
• Court: Environment Court

In the Matter of appeals under section 120 and clause 14 of the First Schedule of the Resource Management Act 1991 (the Act)

BETWEEN

Newbury Holdings Limited (ENV-2006-AKL-000723)

and

Auckland Council (as successor to Auckland Regional Council (ENV-2009-AKL-000216) (ENV-2009-AKL-000477)

and

Tr Group Limited (ENV-2009-AKL-000474) (ENV-2010-AKL-000213)

Appellants

and

Auckland Council (as successor to Auckland City Council)

and

Auckland Council (as successor to Auckland Regional Council)

Respondents

Decision No. [2012] NZEnvC 32

Court:

Hearing on the papers

Environment Judge J A Smith sitting alone pursuant to Section 279 of the Act

BEFORE THE ENVIRONMENT COURT

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.

Submissions:

Mr D Kirkpatrick and Mr K Littlejohn for Newbury Holdings

Limited and TR Group Limited

Mr B Loutit and K Read for Auckland Council

• 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.

DECISION AS TO COSTS

REASONS FOR DECISION

Introduction

1 In Decision No. [2011] NZEnvC 364, delivered in November 2011, this Court gave a series of decisions relating to appeals on both resource consents and plan matters.

Timing of Costs Decision

2 The substantive decision has been appealed, but Newbury Holdings Limited (Newbury) and TR Group Limited (TR Group) have still made application for costs.

3 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.

4 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.

5 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...