Newbury Holdings Ltd v Auckland Council

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

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 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.

Factors influencing the awards as to liability

6 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.

7 The Court has commonly adopted the case of DFC NZ Limited v Bielby 1 to establish further circumstances to be taken into account in making a significant award of costs:

• [a] Were arguments advanced without substance?

• [b] Were the processes of the Court abused?

• [c] Were the cases poorly pleaded or presented, including conducting a case in such a manner as to unnecessarily lengthen the hearing?

• [d] Where it becomes apparent that a party has failed to explore the possibility of settlement where compromise could have been reasonably been expected; and

• [e] Where a party takes a technical or unmeritorious point of defence.

8 It is correct that the outcome of this case was to give partial success to the applicant. Nevertheless, it is important to note that at the time of adjournment during hearing the Court did encourage the Council to purchase the property, and subsequently commented on its failure to do so. In particular, it appeared to the Court that the Council was reluctant to meet the costs of preserving the values of this site, and wished instead for the applicant to bear these. In paras [5] and [12] of the decision we noted that the Council conceded a reasonable use of the site had to occur, although as we will come to, evidence then advanced by the Council witnesses was at odds with this and followed an / cannot say approach. In paras [48]–[50] in particular, where we noted that Council has shown itself to be less than...