DAVIDSON V PALMERSTON NORTH CITY COUNCIL HC PMN CIV-2004-454-670

DAVIDSON V PALMERSTON NORTH CITY COUNCIL HC PMN CIV-2004-454-670 19 July 2007IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV-2004-454-670BETWEEN CHRISTINE MARY DAVIDSON Applicant AND PALMERSTON NORTH CITY COUNCIL Respondent Hearing: 17 July 2007 Appearances: A N Isac for Applicant J W Maassen for Respondent Judgment: 19 July 2007 In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00 pm on the 19 th day of July 2007.JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL[1] This judgment relates to outstanding costs issues with respect to this proceeding. [2] In a costs minute dated 25 May 2007 Randerson J awarded costs to the applicant (on a category 2B basis of $3,840 plus disbursements) with respect to the respondent's unsuccessful application to strike out the applicant's Judicial Review proceeding. [3] In that costs minute Randerson J also noted and directed that:[3] there are other outstanding costs to be fixed which should also be taken into account. I direct that all outstanding costs issues are to be resolved by the Associate Judge at the next convenient opportunityin Palmerston North. The Registrar is requested to fix a date for hearing before the Associate Judge (45 minutes required).[4] In addition in that minute Randerson J directed that:[4] Counsel for the first respondent is to file and serve submissions on outstanding costs issues within 14 days of the date of this minute and the plaintiff within 14 days thereafter.[5] On 8 June 2007 Counsel for the respondent filed his memorandum as to costs. Counsel for the applicant filed his costs memorandum on 11 July 2007. Having considered those memoranda and submissions made to me at the hearing of this matter on 17 July 2007 I now give my decision on the outstanding costs issues. [6] The background to this matter is conveniently recorded in the reserved judgment of Randerson J on the strike out application dated 5 April 2007. I now set out the relevant aspects:[1] The applicant Ms Davidson has been seeking a building consent from the first respondent Council under the Building Act 1991 for permission to construct a residential dwelling on a property adjoining the Manawatu River. The council has twice refused to grant the consents, raising concern about the stability of the land which it asserts is prone to erosion. [2] After the second refusal by the Council, the matter was referred to the Building Industry Authority (now the Department of Building and Housing) which issued a determination upholding the Council's refusal of the building consent. [3] Ms Davidson has since filed an appeal on questions of law in the District Court against the determination of the Department of Building and Housing. That appeal has not yet been heard. [4] Not long after the matter was referred to the Authority, Ms Davidson issued proceedings in this Court seeking judicial review of the council's refusals to grant the building consent. At a later stage, the Authority was joined as a second respondent. Initially, Wild J made an interim order restraining the Authority from proceeding with its determination. Subsequently however, Ronald Young J discharged that order finding that the matter should first be determined by the Authority. [5] The Council has now applied to strike out the judicial review proceeding on the ground that it would be an abuse of process to permit the proceedings to remain on foot. In essence, the Council says that the judicial review proceedings are spent or that the Court would inevitably refuse the application for review as a matter of discretion since the matter has now been heard and determined bythe Department of Building and Housing, subject to the appeal on questions of law. Ms Davidson submits that the proceedings are not spent and there are outstanding issues for determination. [6] The resolution of this matter depends in part on the relationship between ss 34 and 36 Building Act 1991 ("the Act") which was in force at the relevant time but has since been replaced. The Council submits that it made its determination under s 34 of the Act and it has not made and does not intend to make a decision under s 36. Under that section, a memorial may be placed on the title to the relevant property in certain circumstances. On the other hand, Ms Davidson contends that s 36 issues may still be extant and appropriately considered in this proceeding in due course.[7] As I have noted above, the respondent's strike out application before Randerson J was unsuccessful. Costs were awarded to the applicant on that application. These totalled $3,840 plus disbursements. The respondent however was not required to pay these costs to the applicant at this stage pending determination of all costs issues. [8] The costs questions before me relate to two hearings: a) A hearing before Wild J on 15 October 2004 at which the applicant succeeded in having an interim order made that the respondent not take any further steps to pursue its application to the Building Industry Authority for a determination under s 17 Building Act 1991; b) An interlocutory hearing on the respondent's application for a stay which took place on 8 December 2004 before Ronald Young J where the orders made earlier by Wild J were discharged. This enabled the Building Industry Authority to continue consideration of the respondent's application made to it for a s 17 determination. [9] As I have noted above, this determination of the BIA was subsequently issued upholding the respondent's decision to decline a building consent to the applicants. The applicant has since filed an appeal in the District Court against this determination which appeal has now been transferred to the High Court. This High Court appeal has not as yet been heard. Costs relating to both those appeals are a separate matter not dealt with in this judgment.[10] I have said that the costs which I am to consider here relate to the two previous interlocutory applications noted at para [8][a] and[b] above. On each application previously these costs had been reserved. In terms of the costs minute of Randerson J noted at para [3] above they are now to be determined. [11] In submissions from counsel for the respondent, it is clear that the respondent seeks costs on these two interlocutory hearings on a category 2B basis which he calculates at $13,760. The respondent goes on to submit that the $3,840 costs noted at para [2] above awarded to the applicant need to be set off against this $13,760 sum so that final costs of $9,920 plus disbursements should be awarded to the respondent. [12] In response counsel for the applicant makes several claims. First he contends that category 2B costs totalling $1,595 should be awarded to the applicant with respect to the application for interim orders heard before Wild J on 15 October 2004. Secondly, counsel for the applicant takes issue with the category 2B costs calculations made by counsel for the respondent. And finally, counsel contends that in any event costs should continue to be reserved in this case given that the proceeding has been stayed and that, as a result, there has been no final determination on the merits of the applicant's claim. [13] I now turn to consider these issues. It is convenient to deal with the last question first. In my view it is quickly disposed of, as I reject the applicant's contention that costs should continue to be reserved here. The hearings in question related to interlocutory applications. In terms of R 48E costs on opposed interlocutory applications are to be fixed now given the applications have been determined. No special reasons to the contrary exist here. Costs orders are to follow.Hearing of 15 October 2004 before Wild J[14] Effectively, when this matter was first brought before Wild J on 15 October 2004, at a short preliminary hearing, an interim order was made that the respondent not take any further steps in the interim to pursue its application to the BIA for the determination sought.[15] That interim order continued in place only until 10 December 2004.Decision of Ronald Young J dated 10 December 2004[16] The interim order made by Wild J was lifted by Ronald Young J in his reserved and detailed 10 December 2004 decision. Once the order was discharged then this freed the Building Industry Authority to continue consideration of the application put to it for determination. As I understand it, Ronald Young J's reasoning was based on the proposition that Judicial Review was inappropriate in circumstances where the matter at issue had been submitted for determination by a specialist party under the statutory procedures set out in the Building Act 1991. This was of course subject to any appeal on a question of law under s 86. Ronald Young J considered it would be wrong for the Court to intervene in this process. [17] Effectively, the respondent had succeeded entirely. The interim order had been discharged. That said, I am satisfied that the applicant is entitled to an award of costs with respect to those 15 October 2004 and 8 December 2004 hearings. Those costs are to be awarded on a category 2B basis, and this aspect was not challenged by counsel for either party. [18] Several issues arise however with respect to the quantum of those costs. These are: a) The appropriate daily recovery rate in terms of Rule 48 and Schedule 2 of the High Court Rules prevailing at the time of these hearings in October and December 2004 for category 2 proceedings was $1,450 per day. This differs from the $1,600 per day which counsel for the respondent has endeavoured to claim. b) The time occupied by the hearings before both Wild J and Ronald Young J is claimed by the respondent at one-half day each. Counsel for the applicant contends that each hearing occupied only a one- quarter day. The Wild J hearing on 15 October 2004 clearly in my view was a short one and should attract costs based on one-quarter ofa day only. Having now had the opportunity to consider the 11-page reserved judgment from Ronald Young J on the 8 December 2004 hearing however I am satisfied that it is appropriate for one-half day to be allocated for this hearing for costs purposes. c) That said, the appropriate award of costs to the respondent for these hearings is therefore: i) Item 4.13 – preparing and filing opposition to two interlocutory applications and supporting affidavits - .6 at $1,450 per day = $870. - two applications at $870 each = $1,740. ii) Item 4.14 – preparation for hearing of two defended interlocutory applications - one-half day at $1,450 per day = $725. - one-quarter day at $1,450 = $362.50. iii) Item 4.15 – appearance at hearing of two defended interlocutory applications - one-half day at $1,450 per day = $725. - one-quarter day at $1,450 per day = $362.50 iv) Total: $3,915.00[19] The respondent is therefore entitled to an award of costs from the applicant with respect to these matters of $3,915.00 plus disbursements if any as approved by the Registrar.[20] In summary then, the costs position is: a) Costs awarded to the applicant on the respondent's unsuccessful strike out application are $3,840 plus disbursements. b) Costs awarded to the respondent on the present applications are $3,915.00 plus disbursements. c) The position therefore is as follows: i) The applicant is entitled to costs totalling $3,840 plus disbursements as fixed by the Registrar. The respondent is entitled to costs totalling $3,915 plus disbursements as fixed by the Registrar. ii) The net position therefore is that the applicant is to pay to the respondent costs of $75.00 plus any adjustment for disbursements as fixed by the Registrar. [21] An order to this effect is now made."Associate Judge D I Gendall"Solicitors: Fitzherbert Rowe, Private Bag 11016, Palmerston North for Applicant Cooper Rapley, P O Box 1945, Palmerston North for Respondent