AHUAREKA TRUSTEES (NO 2) LIMITED v AUCKLAND COUNCIL [2020] NZHC 2303

AHUAREKA TRUSTEES (NO 2) LIMITED v AUCKLAND COUNCIL [2020] NZHC 2303 [4 September2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-121[2020] NZHC 2303UNDER the Resource Management Act 1991IN THE MATTER of the appeal under section 299 of theResource Management Act 1991BETWEEN AHUAREKA TRUSTEES (NO 2)LIMITEDAppellantAND AUCKLAND COUNCILRespondentOn the papers:Judgment: 4 September 2020JUDGMENT OF HINTON J[Re Costs]This judgment was delivered by me on 4 September 2020 at 4:00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Alan Webb, Barrister, AucklandBurton Partners, AucklandParty:Whitford Residents & Ratepayers Association[1] This decision relates to a costs application by a party joined to proceedingsunder ss 274 and 301 of the Resource Management Act 1991 (the Act).[2] On 2 December 2019 I gave judgment in this matter in favour of AucklandCouncil, dismissing an appeal by Ahuareka Trustees (No 2) Ltd against a decision ofthe Environment Court declining resource consent for land use on a property situatedbetween Whitford and Beachlands.1[3] On 15 January 2020, Ahuareka filed an application for leave to appeal to theCourt of Appeal. By consent I adjourned the question of costs in this Court pendingdetermination of the leave application. Leave was declined on 28 May 2020.2[4] Ahuareka and the Council then agreed costs and by consent I awarded theCouncil costs of $14,997.25 plus disbursements of $446.33.[5] The Whitford Residents & Ratepayers Association was granted leave to appearas a party in the Environment Court under s 274 of the Act and was therefore entitledto appear in this Court on the appeal pursuant to s 301 of the Act. The Associationwas represented at the appeal and made submissions in support of the Council'sposition.[6] By memorandum Mr Alderdice, an officer of the Association,3 seeks costs ona 2B basis of $11,352.20 for commencement of response to the appeal, preparation ofwritten submissions, and appearance at the hearing of the appeal. There is no claimfor disbursements.[7] Ahuareka opposes the application. Its counsel, Mr Webb, accepts theAssociation participated on the winning side, but submits the Association was"effectively a bystander" insofar as it adopted and supported the Council's successful1 Ahuareka Trustees (No 2) Ltd v Auckland Council [2019] NZHC 3142.2 Ahuareka Trustees (No 2) Ltd v Auckland Council [2020] NZCA 191.3 I note the Association was represented at the hearing of the appeal, so no issue arises in this respect.Nor do I consider it necessary, especially when Ahuareka has not taken the point, to insist that theAssociation obtain legal representation for the purposes of making submissions on the question ofcosts.position and "added very little additional material." In these circumstances, hesubmits, awarding the Association costs would unfairly benefit the Association andunduly penalise Ahuareka.[8] The ordinary costs regime applies to proceedings in this Court, includingappeals, absent some good reason to the contrary.4 In any case, s 299 of the Actprovides that the appeal is to be made in accordance with the High Court Rules 2016.5[9] The ordinary rule in this Court is that a successful party is entitled to costs.6[10] However, r 14.15 is also part of the ordinary costs regime:14.15 Defendants defending separatelyThe court must not allow more than 1 set of costs, unless it appears to the courtthat there is good reason to do so, if—(a) several defendants defended a proceeding separately; and(b) it appears to the court that all or some of them could have joined in theirdefence.[11] Mr Webb did not refer me to r 14.15 in submissions. However, it does apply.A "defendant" is, inter alia, a person served with a proceeding.7 A proceeding includesan appeal. Ahuraeka was, in bringing its appeal, required to serve a copy of its noticeof appeal on the Association as the Association had been a party in the EnvironmentCourt.8 It follows that the Association was a defendant in this proceeding. As noted,the ordinary costs regime applies to appeals as it does to other proceedings in thisCourt,9 such that there is no difficulty in reading "defendants" as "respondents".[12] Rule 14.15 recognises that the Court ought to be cautious in awarding costs infavour of multiple parties where there is overlap between the litigation interests of4 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109; [2013] 1 NZLR 305 at [7]; andHigh Court Rules 2016, rr 1.2 definition of "proceeding and 1.4.5 This is subject to ss 300-307 of the Act, but none of those provisions are presently relevant.6 High Court Rules 2016, r 14.2(1)(a).7 Rule 1.3 definition of "defendant".8 Resource Management Act 1991, s 299.9 Above n 4.those parties, such that a joint defence might have been expected.10 In determiningwhether more than one set of costs should be allowed where r 14.15 is engaged, thisCourt has had regard to a number of matters, including:11(a) in a robust manner, whether the parties have common or overlappinginterests, and the extent to which this is so, including whether separateclaims were advanced in respect of each defendant and the impact ofany relief sought on each party;(b) whether the defendants' relationship was such that it was justifiable forthem not to join their defences;(c) whether the parties took legal advice as to the appropriateness ofseparate representation and, if so, whether that was followed; and(d) the extent to which one party did or could have relied on another'ssubmissions or evidence.[13] The application of r 14.15 to a s 274 party is not straightforward. Theconsiderations listed above are obviously more apt to named defendants to a firstinstance general civil proceeding than the position of a s 274 party appearing on anappeal to this Court.[14] For instance, s 274(4B) of the Act makes it clear that a s 274 party cannotdefine and argue for its own desired outcome but is confined to supporting or opposingthe decision that has been appealed.12 It follows that the Association's litigationinterest, in terms of the legal outcome for which they contended, was necessarilyaligned with the Council's, making the first point above more equivocal than it wouldtend to be in a standard proceeding.10 Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV-2004-4040-3668, 30 March2005 at [51].11 Independent Maori Statutory Board v Auckland Council [2017] NZHC 678 at [9]; Jordan vO'Sullivan (No 2) HC Wellington CIV-2004-485-2611, 1 May 2009 at [7]-[8]; and Grey DistrictCouncil v Blain [2014] NZHC 939 at [4]-[7].12 Meridian Energy Ltd v Wellington Regional Council [2012] NZEnvC 148 at [6]-[7], citing TransitNZ v Pearson [2002] NZRMA 318 (HC).[15] More generally, s 274 is in clear derogation from the usually restrictiveapproach adopted to preserving the privity of litigation.13 All that is required of anorganisation like the Association to become a s 274 party is that it be able todemonstrate it "has an interest in the proceedings that is greater than the interest thatthe general public has".14 A wide range of parties will likely be able to satisfy thatdescription. Section 274 parties will seldom have a relationship to a party whoseposition they support that will allow them realistically to join in their representation,and I do not consider the Association had such a relationship with the Council in thiscase. This renders the second and third points above similarly equivocal.[16] Neither party referred me to any cases addressing the costs of a successful (asopposed to unsuccessful)15 s 274 party on an appeal from the Environment Court tothis Court, and nor have I identified any relevant authorities.[17] The standard approach to costs in the Environment Court, which is on adiscretionary basis,16 is quite different to the High Court costs regime. However, thepractice in the Environment Court in respect of a s 274 party's costs appears to be thatthe Court will assess the extent to which that party's efforts aided in resolving theproceeding in a just and expeditious manner. The greater the value added, the morelikely it is that an award of costs will be made, and the greater the likely amount of theaward.17 The fourth consideration relevant to the application of r 14.15 noted aboveclearly invites a similar inquiry.[18] This brings me back to Mr Webb's submission. I agree with him that theCouncil was the active protagonist. The part played by the Association was clearlyone of supporting the Council. As Mr Webb correctly notes, I did not in my judgmentrefer to any point made by the Association that was not also made by the Council.13 Compare Seales v Attorney-General [2015] NZHC 828 at [41].14 Resource Management Act 1991, s 274(1)(d).15 See Lambton Quay Properties Nominee Ltd v Wellington City Council [2014] NZHC 878, [2014]NZRMA 257 at [113], in which a s 274 party was made jointly and severally liable for the costsof a failed appeal together with the unsuccessful local authority, the position of which it had soughtto support.16 See Re Canterbury Cricket Association Inc [2014] NZEnvC 106 at [9]-[18].17 At [19]-[35].[19] However, it is clearly relevant that a s 274 party is required only to disclosesome greater interest in the proceedings than the general public in order to becomeinvolved. It is not required, as would be the case with say an intervenor, to demonstrateits presence will be of assistance to the Court.[20] In this respect, the Association had a clear interest both greater than and distinctfrom that of the wider public in opposing Ahuareka's commercially motivated effortsto obtain consent for substantial works that would have significantly altered thecharacter of the locality, the residents of which the Association represents. TheAssociation's case is precisely the type of representation the derogation from a strictapproach to privity found in s 274 was meant to facilitate.[21] The policy of the Act would be undermined by requiring a s 274 party such asthe Association to make a distinctive contribution to the proceeding before it can beawarded costs.[22] Further, while the Association could arguably have just relied on the Council'swritten submissions, they were entirely justified in responding to the appeal andappearing at the hearing to maintain at least a watching brief.[23] For all of these reasons, I am satisfied that a straightforward application of theordinary costs regime would not adequately recognise the sui generis position of s 274parties. Rather, I think the principled approach is to have regard to the level of success,the extent to which the s 274 party's participation in the appeal was of actual assistanceto the Court, and the policy of the statutory regime.[24] Here, while the Association's role was as noted largely a supporting one, it didadd weight to the appeal. Moreover, it of course succeeded in achieving exactly whatit set out to do in exercising its statutory rights as a s 274 party. Also taking accountof the policy of the Act, I order the appellant pay the Association costs of $8,000, beingabout two-thirds of the 2B scale costs the Association claims.Hinton J