CATTELL v AUCKLAND COUNCIL [2018] NZHC 733

CATTELL v AUCKLAND COUNCIL [2018] NZHC 733 [19 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2014-404-1730[2018] NZHC 733BETWEEN CLEMENT GILLIBRAND CATTELL andDEANNA PHYLLIS CATTELL (as trusteesof the Deanna Phyllis Family Trust)PlaintiffsAND AUCKLAND COUNCILDefendantHearing: On the papersAppearances: D Bigio QC and A Steel for PlaintiffsF Divich and K Perry for DefendantJudgment: 19 April 2018JUDGMENT OF LANG J[on costs]This judgment was delivered by me on 19 April 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 7 March 2018 I delivered a judgment1 (the relief judgment) in which Idetermined the issue of relief following an earlier judgment (the liability judgment)2finding the defendant (the Council) liable to the plaintiffs in nuisance. In the reliefjudgment I directed the Council to take such steps as may be necessary within its ownland to reinstate support to the plaintiffs' land.[2] The parties have not been able to reach agreement regarding the issue of costsin relation to the hearing that led to the relief judgment. I am therefore required to fixcosts having regard to the issues raised in memoranda filed by both counsel.The plaintiffs' position[3] The plaintiffs seek costs on a Category 2B basis together with an uplift of 33per cent to reflect their assertion that the Council advanced an argument that lackedmerit and failed without reasonable justification to accept an offer of settlement.[4] The Council seeks an order that costs should be awarded to it on a Category2B basis. Alternatively, the Council contends that there should be no order for costsin favour of either party.Relevant principles[5] There is no dispute regarding the principles to be applied. Although costs areat the discretion of the court,3 the guiding principle is that the unsuccessful partyshould be required to contribute to the costs of the successful party.4[6] The Court may award increased costs where a party advances an argument thatlacks merit5 or fails without treasonable justification to accept an offer of settlement.61 Cattell v Auckland Council [2018] NZHC 3387.2 Cattell v Auckland Council [2017] NZHC 2140.3 High Court Rules 2016, r 14.1(1).4 High Court Rules, r 14.2(1)(a); Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109,[2013] 1 NZLR 305 at [8].5 High Court Rules, r 14.6(3)(b)(ii).6 High Court Rules, r 14.2(3)(b)(v).Who was the successful party?[7] From the outset the plaintiffs have sought an order requiring the Council toreinstate support to their land by undertaking remedial or strengthening works withinthe reserve owned by the Council. The Council sought to persuade the Court that thedamage to the driveway in the plaintiffs' land could be remedied by replacing theturning area of the plaintiffs' driveway with a strengthened support structure. Thiswould require the plaintiffs to permit the Council and its contractors to have access totheir land to carry out remedial works.[8] I did not accept the Council's argument and made orders as sought by theplaintiffs. For that reason the plaintiffs were clearly the successful party. I did not,however, accept the plaintiffs' argument in its entirety. This is because I held that theCouncil was not required to provide support to those parts of the plaintiffs' land wheredamage is not yet evident.[9] I therefore consider the plaintiffs should receive costs. I do not consider theaward should be reduced to reflect the fact that the Council succeeded in its argumentregarding the extent to which it should be required to reinstate support. That was arelatively minor issue in the scheme of things.Should the plaintiffs receive increased costs?Advancing an argument that lacked merit[10] Mr Bigio QC for the plaintiffs submits the Council should pay increased costsbecause it could not point to any authority supporting its argument. As a result, hecontends the argument had no prospect of success.[11] I disagree because I do not accept the Council advanced an argument that wasunreasonable or lacked merit. As I indicated in both the liability judgment7 and therelief judgment8, the solution suggested by the Council had considerable advantagesbecause it involved one set of remedial works. Under the option favoured by the7 Cattell v Auckland Council, above n 2, at [119].8 Cattell v Auckland Council, above n 1, at [5] and [13].plaintiffs and adopted by the Court it will be necessary for two sets of works to becarried out. The first is the provision of support within the reserve near the boundaryof the plaintiffs' land. The second will be the remedial work necessary to repair theplaintiffs' driveway. On one view the stance taken by the plaintiffs can be regardedas unreasonable because of the added expense of the two sets of work. On another,the plaintiffs were entitled to insist on their right to have the Council reinstate supportto their land.[12] The fact that the Council could not point to any authority supporting itsargument does not mean the argument lacked merit because it was entitled to ask theCourt to adopt a novel approach. I consider it was entirely reasonable for the Councilto advance an argument that remedial works on the plaintiffs' land would be anappropriate solution. I therefore do not consider the plaintiffs are entitled to increasedcosts because the Council's argument lacked merit.Unreasonable failure to accept an offer of settlement[13] Prior to the hearing the plaintiffs offered to accept a solution under which theCouncil would engage an independent engineer to undertake works within the reserveto restore support to the plaintiffs' land. The Council was not prepared to accept thatoffer. The plaintiffs contend the Council should be required to pay increased costs toreflect the Council's unreasonable failure to accept the offer.[14] As I have already concluded, however, the Council was entitled to endeavourto persuade the Court to adopt a remedial solution requiring a single set of remedialworks on the plaintiffs' land. For that reason I do not consider the Council actedunreasonably in declining the plaintiffs' offer.Result[15] The plaintiffs are awarded costs on a Category 2B basis together withdisbursements as fixed by the Registrar.[16] The Council has not taken issue with the expenditure incurred by the plaintiffsfor engaging its expert witness. I therefore approve the disbursement relating to expertwitness fees in the sum of $4,887.50 as sought by the plaintiffs.Lang JSolicitors:Pigeon Law, AucklandD R Bigio, AucklandA J Steel, Auckland