MANGAWHAI RATEPAYERS AND RESIDENTS’ ASSOCIATION INC & ROGAN v NORTHLAND REGIONAL COUNCIL & KAIPARA DISTRICT COUNCIL [2019] NZHC 114

MANGAWHAI RATEPAYERS AND RESIDENTS' ASSOCIATION INC & ROGAN v NORTHLANDREGIONAL COUNCIL & KAIPARA DISTRICT COUNCIL [2019] NZHC 114 [11 February 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV 2015-488-95[2019] NZHC 114BETWEEN MANGAWHAI RATEPAYERS ANDRESIDENTS' ASSOCIATION INCFirst PlaintiffAND RICHARD BRUCE ROGAN & HEATHERELIZABETH ROGANSecond PlaintiffsNORTHLAND REGIONAL COUNCILFirst DefendantKAIPARA DISTRICT COUNCILSecond DefendantHearing: On the papersJudgment: 11 February 2019COSTS JUDGMENT OF DUFFY JThis judgment was delivered by me on 11 February 2019 at 3.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Simpson Grierson, WellingtonHenderson Reeves Connell Rishworth, WhangareiBrookfields, Auckland[1] On 27 March 2018 the Court of Appeal delivered a decision allowing in partthe defendants' appeal against the decision I delivered in this proceeding.1 Inaccordance with that outcome the Court of Appeal directed that the award of costs inthis Court be determined "in light of " the judgment delivered by the Court ofAppeal.2[2] The defendants consider the measure of success that they have achieved in theappeal is substantial. In accordance with the general principle that costs follow theevent they seek a joint award of costs on a category 2B basis, which they calculate tobe $44,154.00 together with disbursements of $1,003.96.[3] On the other hand, the plaintiffs argue that costs should lie where they fall. Intheir view, much of the reasoning of the judgment of this Court was upheld by theCourt of Appeal, which warrants each side bearing their own costs.[4] The plaintiffs have carefully traversed the Court of Appeal's judgment for thepurpose of showing where the reasoning in the judgment agreed with that expressedin this Court's judgment.[5] At times, the plaintiffs have been critical of the Court of Appeal's reasoning;and have sought to identify contradictions in the Court of Appeal's judgment. Thiswas done despite the plaintiffs being unsuccessful in their application to the SupremeCourt for leave to appeal against the Court of Appeal's judgment. The defendantscontend that the plaintiffs have made inappropriate submissions insofar as theplaintiffs' submissions essentially invite this Court to review the Court of Appeal'sjudgment after the Supreme Court declined leave to do so. I accept the defendants'argument in this regard. Further, I accept the defendants' complaint that it isinappropriate for the plaintiffs to make submissions of that nature.[6] The outcome for plaintiffs in the Court of Appeal was substantially differentfrom what it was in this Court. The judgment of this Court set the impugned ratesaside, whereas the judgment of the Court of Appeal viewed the identified errors as1 Northland Regional Council v Rogan [2018] NZCA 63.2 At [96].technical and validated their effect. In short, there was a complete reversal of theoutcome in this Court. In such circumstances, I consider the defendants must beviewed as successful parties who, in accordance with the general principle that costsfollow the event, are entitled to costs in this Court. Whatever measure of approval theCourt of Appeal may have given to findings of this Court that favoured the plaintiffs,such approval is not enough to derogate from the application of general principle.Here the event has favoured the defendants and costs to them must follow.[7] The plaintiffs have also been critical of the defendants' calculation of the scalecosts in certain respects. The defendants have not addressed those criticisms. I shalldeal with each criticism in turn.[8] The plaintiffs content that the preparation of the memorandum of 29 October2015 seeking a timetable extension amounted to an indulgence for which thedefendants are not entitled to costs. Whilst I accept that memoranda seekingextensions of timetable directions are an indulgence sought by the parties who makethis request, nonetheless such requests are often part and parcel of the normal run oflitigation. This is not a reason to deny them costs.[9] The plaintiffs' claim there is an element of double up in the defendantsclaiming .5 days in respect of submissions on 19 December 2016 concerning relief,and similarly a large element of double up in claiming a further 1.5 days forsubmissions on 5 July 2017 concerning s 120. Whilst there may have been an elementof double up I do not consider this sufficient to disqualify the defendants from theirclaim for costs in this regard. An interim judgment was given in this Court with theparties being given a further opportunity to make submissions on relief. It necessarilyfollowed that questions of relief which may have been addressed in the first hearingwere subsequently revisited later. That is an integral characteristic of split hearings,particularly when the parties at the first hearing have no expectation of the Courtdelivering an interim decision with leave being given to make further submissions onrelief. I do not see the fact the defendants addressed questions of relief in two sets ofsubmissions for separate hearings as being a double up, and insofar as it might becharacterised in that way it was through no fault of the defendants. I consider they areentitled to seek costs for the time they actually spent on their submissions in relationto 19 December 2016 and 5 July 2017.[10] The plaintiffs say the defendants have sought excessive preparation time byseeking a further three days preparation for the relief hearing. I consider in the contextof this proceeding that the preparation time the plaintiffs have sought is appropriate.In the end the key issue which resulted in the defendants' success in the Court ofAppeal was their submissions on relief. Before this Court the defendants spentconsiderable effort in attempting to persuade this Court that any errors it might havefound were technical and susceptible to validation under s 5 of the JudicatureAmendment Act 1972. The defendants put forward thorough, well preparedsubstantive arguments which, although rejected by this Court, ultimately found favourin the Court of Appeal. I consider the time and effort spent in preparing thosearguments for hearing in this Court warrants recognition in the form of the preparationtime they seek.[11] In conclusion, I reject the various criticisms the plaintiffs' make regarding thedefendants' scale costs calculation.Result[12] It follows that I find the defendants are jointly entitled to the costs anddisbursements they seek: namely, costs in the sum of $44,154.00 and disbursementsof $1,003.96.Duffy J