CEO LAND INFORMATION NZ V LUKE, MEDLAND, NISBETT AND CLARK HC AK CIV 2007-404-0057

CEO LAND INFORMATION NZ V LUKE, MEDLAND, NISBETT AND CLARK HC AK CIV 2007-404- 0057 4 July 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-0057IN THE MATTER OF section 40(2) Public Works Act 1981 BETWEEN CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND Appellant AND ETHEL LUKE, MARY JENNIFER MEDLAND, NANCYE MOIR NISBETT AND ALAN RAYMOND CLARK Respondents Judgment: 4 July 2007COSTS JUDGMENT OF HARRISON J_________________________________________________________________________________ SOLICITORS Crown Law Office (Wellington) for Appellant Morgan Coakle (Auckland) for Respondents[1] On 11 May 2007 this Court dismissed an appeal by the Chief Executive of Land Information New Zealand, for and on behalf of the New Zealand Defence Force, against a decision of the Land Valuation Tribunal at Auckland on 18 December 2006 determining the price to be paid by the respondents, collectively the Luke interests, for an area of land comprising 12.52 hectares which was part of the former Hobsonville Airbase on the north-western side of the Waitemata Harbour. [2] Costs were awarded to the Luke interests with leave reserved to apply for increased costs. It is not in dispute that the Court has power to award costs on an appeal of this nature. RR46-48H HCR are equally applicable to appeals: Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786. [3] The Luke interests seek indemnity costs, claiming that the Crown 'has acted vexatiously, frivolously, improperly, or unnecessarily' in bringing this appeal: R48C(4). They allege that exceptional circumstances exist here justifying an award on a solicitor/client basis. They say that the grounds of appeal were 'hopelessly misconceived from the outset'; that the appeal 'was commenced in wilful disregard of known facts'; and that the Crown should have known that neither ground of appeal could ever succeed. [4] By way of brief background, the Crown raised two principal grounds of appeal. One was that the Tribunal failed to value the land according to its best and highest use. The other was that it failed to take account of relevant valuation evidence, being the sale price of the land agreed in July 2005, two years after the Crown's offer to sell the land back to the Luke interests ' at the current market value of the land as determined by a valuation carried out by a registered valuer ': s 40(2)(c) Public Works Act 1981. [5] Both grounds of appeal were dismissed. The ratio of the judgment is found at paras [18], [19] and [20] on the first ground, and paras [22]-[29] on the second. It is unnecessary to repeat or summarise the reasons. I agree with the Luke interests that the grounds of appeal were misconceived. However, I am reluctant to visit them with the epithet of hopelessness. By a narrow margin I am not satisfied that the Crown acted improperly or unnecessarily in commencing this appeal.[6] In the alternative, the Luke interests seek increased costs on two grounds. First, they say that the time required for preparation substantially exceeded the time allocated under band C because the breadth of the Crown's submissions and the size of the case on appeal. They say that junior counsel was required to commit at least 40 hours in preparation of submissions. The scale provides for only one day. [7] I accept this submission. I am satisfied that the nature of the appeal, and in particular the breadth (often repetitive) of the Crown's submissions, justify an increase. The Crown's synopsis raised a large number of arguments. While many were irrelevant to the real issues on appeal, or were variants or restatements of the same underlying grounds, they required opposing counsel's careful consideration and review. In my judgment it is appropriate to allow three days for preparation. [8] Second, the Luke interests say the Crown contributed unnecessarily to the time or expense of the proceeding by pursuing an unnecessary step or arguments that lacked merit. It follows from my earlier observations that I am satisfied that the Crown's arguments on appeal lacked merit. The second ground of its appeal, in particular, was at odds with the position taken by the Crown before the Land Valuation Tribunal. It sought to advance an argument which it apparently disclaimed in that forum. [9] The Luke interests accept that category 2B should apply. I am satisfied that it is appropriate to adjust the scale rate, based on three days preparation time, upwards by 50%: Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA). While I accept that this result is neither financially fair for the Luke interests nor approaches a reasonable contribution towards their actual and necessary costs, I am bound to apply the scale according to the standard of the notional counsel appropriate for this category of proceedings, subject to a modest uplift.[10] Judgment is entered for the Luke interests against the Crown for costs for two counsel calculated according to category 2B with preparation of three days instead of one, with the amount to be adjusted upwards by 50%. The Luke interests are also entitled to disbursements to be fixed by the Registrar failing agreement between counsel. ______________________________________ Rhys Harrison J