MANIAPOTO v TE NEHENEHENUI TRUST [2023] NZHC 1663

MANIAPOTO v TE NEHENEHENUI TRUST [2023] NZHC 1663 [30 June 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2021-419-254[2023] NZHC 1663UNDER Section 13 of the Senior Courts Act 2016and Part 19 of the High Court Rules 2016IN THE MATTER of breach of fiduciary relationship orobligation and estoppelBETWEEN HAROLD MANIAPOTOPlaintiffAND TE NEHENEHENUI TRUSTDefendantHearing: On the papersAppearances: D Maniapoto for the PlaintiffM Mahuika and N Milner for the DefendantJudgment: 30 June 2023JUDGMENT OF GAULT J(Costs)This judgment was delivered by me on 30 June 2023 at 3:30 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr C Tennet, Barrister, Lower HuttMs D Maniapoto (plaintiff's instructing solicitor), KihikihiMr M Mahiuka and Mr N Milner, Kahui Legal, WellingtonCopy to:Mr G Melvin, Ms L Theron and Ms I Wilson, Crown Law, Wellington[1] In my judgment dated 15 March 2022 dismissing applications for interiminjunction and freezing orders in relation to settlement of the historic claims ofManiapoto against the Crown, I indicated that the defendant was entitled to costs.1[2] The parties were unable to agree costs. By memorandum dated 12 April 2022,the defendant sought 2B costs of $20,554 and disbursements of $110, totalling$20,664.[3] The plaintiff sought extensions of time to respond and the issue of costs wasadjourned by agreement to allow further discussion between the parties.[4] After a year, the parties have still not reached agreement, and on 24 May 2023the plaintiff filed a memorandum proposing reduced costs. On 26 May 2023,I indicated that I would determine costs on the papers based on the memoranda alreadyfiled.[5] In the meantime, the Maniapoto Claims Settlement Act 2022 has been enactedand the defendant Maniapoto Māori Trust Board has been replaced with the post-settlement governance entity Te Nehenehenui Trust.[6] Ms Maniapoto, for the plaintiff, emphasised the finding in my judgment thatthere was a serious question to be tried as to whether the defendant acted in breach offiduciary duty, albeit I concluded that in relation to a claim for non-monetarysubstantive relief there was not a serious question to be tried. She also submitted thatcosts are discretionary, and that the appropriate daily recovery rate is normally two-thirds of the category 2B daily rate. She submitted that the rate of two-thirds of $2,390per day should apply. She also submitted that the defendant inflated costs byoverlooking relevant, applicable rules and their contributory conduct of non-compliance and non-transparency in the interlocutory proceedings. In particular, sheseeks a reduction in respect of items 23 (filing opposition), 30 (preparation ofaffidavit) and 32 (preparation for hearing).1 Maniapoto v Maniapoto Māori Trust Board [2022] NZHC 455 at [70].[7] As already indicated, the defendant is entitled to costs. It succeeded on bothapplications. This is not a case where costs should be reduced on the basis that despitesucceeding overall, the defendant failed in relation to an issue which significantlyincreased costs.2[8] As Ms Maniapoto submitted, as a general principle the appropriate dailyrecovery rate should normally be two-thirds of the daily rate considered reasonable inrelation to the proceeding or interlocutory application.3 However, schedule 2 of theHigh Court Rules 2016 provides that the appropriate daily recovery rate for category2 proceedings is $2,390. That is two-thirds of the daily rate considered reasonable.The general principle does not require a further reduction from the appropriate dailyrecovery rate.[9] In relation to the specific challenges to the items claimed by the defendant:(a) I disallow items 30 and 32, totalling $9,560. Items 24 and 26, totalling$4,780, are the relevant items for preparation of submissions for, andappearance at, interlocutory hearings.(b) The instances of the defendant's claimed non-compliance with the rulesand duty to the Court do not meet the relevant threshold in r 14.7 ofcontributing unnecessarily to the time and expense of the proceeding orstep in it. They do not warrant a reduction.(c) In relation to the defendant's claimed lack of transparency, I acceptthere appears to have been an unhelpful delay between service of theapplication for interim injunction on 29 October 2021 seeking torestrain the defendant from signing a deed of settlement with the Crownand the defendant's advice on 12 November 2021 that the deed hadalready been signed. However, this too was not shown to havecontributed unnecessarily to the time or expense of the proceeding or astep in it. In relation to the criticism of the defendant's description of2 High Court Rules 2016, r 14.7(d).3 Rule 2016, r14.2(1)(d).the accelerated process of the Bill through Parliament, I am not in aposition to assess whether there was a lack of transparency as opposedto simply a speedier process than envisaged but in any event again I amnot satisfied that this contributed unnecessarily to the time or expenseof the applications.(d) In relation to the disputed claim for two notices of opposition, since theplaintiff filed separate applications for an interim injunction and afreezing order and the defendant filed two notices of opposition, thedefendant is entitled to claim for filing both notices. I decline to reducethis item. There is no double counting in respect of the submissionsand hearing.(e) I decline to award the plaintiff costs in respect of its costsmemorandum. While the Court has power to award costs on costs, it isgenerally reluctant to do so.4 Here, each side has had a measure ofsuccess on costs and the quantum involved and the delay weigh againstan award by way of offset.Result[10] The defendant is entitled to 2B costs of $10,994 plus disbursements of $110,totalling $11,104.________________________________Gault J4 See for example Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; Barry Park Investments Ltdv Body Corporate Number 95388 [2016] NZHC 1527 at [25]; Epsom Woods Ltd v WaitakereFarms Ltd [2020] NZHC 3137 at [4]; Norrie v Crown Range Holdings Ltd [2022] NZHC 898 at[28]; DGL Manufacturing Ltd v Simmonds [2022] NZHC 1434 at [18]; Legler v Formannoij[2022] NZHC 1804 at [12] and Neal v Neal [2022] NZHC 2625 at [33].