KI COMMERCIAL LIMITED v CHRISTCHURCH CITY COUNCIL [2019] NZHC 363

KI COMMERCIAL LIMITED v CHRISTCHURCH CITY COUNCIL [2019] NZHC 363 [7 March 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-001004[2019] NZHC 363BETWEEN KI COMMERCIAL LIMITEDAppellantAND CHRISTCHURCH CITY COUNCILRespondentHearing: On the papersAppearances: J S Angland for AppellantM K Prendergast and E K Osborne for RespondentJudgment: 7 March 2019JUDGMENT OF DUNNINGHAM JRE: COSTS DECISIONA The appellant's request to defer the fixing and payment of costs until afterany application/appeal relating to the judgment dated 23 May 2017 isfinally disposed of, is declined.B The appellant is to pay the respondent costs, on a 2B basis, in respect ofsteps taken in the proceedings up to the judgment dated 23 May 2017.C The appellant is to pay the respondent costs, on a 2B basis, in respect ofsteps taken in the proceedings in relation to the jurisdictional issue whichwas determined by the Court in the judgment dated 8 November 2018.[1] This application for costs has its genesis in my decision of 23 May 2017.1 Inthat decision I dismissed the appellant's appeal in relation to decisions made by theIndependent Hearing Panel when preparing the Replacement District Plan forChristchurch, which impacted on the appellant's ability to redevelop its commercialland in the suburb of Addington (the 2017 decision). I reserved the issue of costs.[2] The appellant then sought leave to appeal the 2017 decision from the Court ofAppeal. By consent, the parties agreed to place the issue of costs on hold until afterthe application to the Court of Appeal was disposed of. Leave to appeal was declinedby the Court of Appeal on 20 October 2017.2[3] In August 2018, the appellant filed an interlocutory application for recall of the2017 decision. The respondent filed an objection to jurisdiction, arguing that theHigh Court was functus officio and an application for recall could only be made to theCourt of Appeal. The jurisdictional issue was heard by Justice Nicholas Davidson on29 October 2018. He dismissed the application for want of jurisdiction, saying onlythe Court of Appeal could deal with an application for recall (the 2018 decision).3Again, costs were reserved.[4] The appellant subsequently indicated that it would be seeking leave to bring aspecial appeal against the 2017 decision. However, it has not done so in thefour months since the 2018 decision issued.[5] By memorandum dated 24 June 2018, counsel for the respondent sought thatthe issue of costs on both the 2017 decision and the 2018 decision be finallydetermined. I made timetabling directions as a consequence, and said that costs wouldbe determined on the papers unless I needed to hear from counsel.[6] The appellant has since filed a memorandum in respect of cost issues. In it, itsays:1 KI Commercial Ltd v Christchurch City Council [2017] NZHC 1076.2 KI Commercial Ltd v Christchurch City Council [2017] NZCA 480.3 KI Commercial Ltd v Christchurch City Council [2018] NZHC 2896.(a) The delay in filing the application for special leave to appeal is due tosenior counsel's commitments. Mr Hodder QC has now confirmed hewill act and that "the application for special leave could be filed as earlyas 31 March 2019".(b) It is submitted on behalf of the appellant that costs should be deferreduntil the issue of whether the 2017 decision should be recalled andreheard has been determined.(c) In respect of the 2018 decision, it says "that was on a very narrowjurisdictional issue only", with submissions of both counsel only takinga quarter of a day, and costs should not be determined on a 2B basis,but rather on a 2A basis.[7] The respondent has filed a memorandum in reply. In summary, its position is:(a) The respondent was successful in both the 2017 and 2018 decisions andany delay in the determination of costs is prejudicial to it, particularlywhere the appellant has demonstrated no urgency to advance itsintimated application to the Court of Appeal.(b) Such delay is contrary to the principle that the determination of costsshould be expeditious.(c) The respondent has made it clear to the appellant since August 2018that its allegations should have been raised in the Court of Appeal.(d) There is no certainty as to when, or even if, an application to the Courtof Appeal will be filed.(e) The respondent questions whether the unavailability of senior counselproperly explains the delay, as the grounds on which the appeal will beadvanced are already identified and it is not clear whether the appellanthas approached other senior counsel, includingMr Hughes-Johnson QC who appeared on behalf of the appellant in theCourt of Appeal, to advance the case.(f) There is no prejudice to the appellant as a costs award will not preventthe appellant from filing an application.(g) In relation to the 2018 decision, there is no reason to defer thedetermination of costs on that as it has not been appealed.(h) The respondent also rejects the suggestion that the proceedings shouldbe categorised as Band A when the matter was of average complexityand there was no direct authority on the jurisdictional issue arising.Accordingly, the proper categorisation is 2B.Costs on the 2018 decision[8] I am satisfied that there is no reason to defer the determination of costs on the2018 decision as that is not subject to appeal. The only issue is whether costs shouldbe calculated using a Band A or Band B time allocation under sch 3 of the High CourtRules 2016.[9] I accept the respondent's submission that the appeal was of averagecomplexity. The judgment traversed the competing contentions as to whether anallegation of apparent bias must be heard by the Judge against whom the allegation ismade. The appellant's view was that it should be, particularly where, as here, thejudgment had not been sealed and the Court of Appeal had not ruled on the merits ofthe substantive appeal. The contrary view, raised by the respondent, was that biasraised post-judgment should be dealt with on appeal. There was no direct authorityon the circumstances which arose and the competing arguments sought to reason byanalogy with other cases involving different factual scenarios.[10] I am readily satisfied that in the circumstances this was a case of averagecomplexity which would have taken an average amount of time to prepare. The factthat the hearing only took a quarter of a day is recognised by the respondent onlyclaiming for that time allocation. It does not, in my view, determine the timereasonably needed for the other steps. The proper categorisation is therefore 2B.[11] Accordingly, costs are awarded in favour of the respondent on the steps takenin relation to the 2018 decision on a 2B basis, as sought by the respondent.Costs on the 2017 decision[12] The application for costs arising from the 2017 decision is slightly different.The parties had originally agreed it was appropriate to defer addressing costs until theCourt of Appeal disposed of the matter. However, at that stage it was not anticipatedthat the subsequent application for recall would be made.[13] In normal circumstances, where appeal rights are being pursued expeditiously,the Court might defer the issue of costs until final disposition. The distinction here isthat the appellant has not expeditiously pursued the matter to a conclusion. Havingreceived the 2018 decision in early November, it has failed to pursue its case in theCourt of Appeal to date. Even at this juncture it can intimate no more than that anapplication to that Court "might be filed by 31 March 2019". While the appellant maybe content to delay to secure counsel of its choice, I do not consider it is fair to makethe respondent await the payment of costs for an indeterminate period.[14] I see no reason why costs should not be determined now, particularly wherequantum is not challenged. Accordingly, I order that costs are awarded, on a 2B basisin relation to steps taken in the proceedings up to the 2017 decision, as set out in thememorandum of counsel for the respondent dated 24 January 2019.[15] The appellant offers no cogent reason for staying execution of such a judgment(which in practical terms is what it is seeking given there is no material dispute as toquantification of costs). There is no prejudice identified as resulting to the appellantif it has to pay the costs award of approximately $10,500. It does not suggest it isimpecunious and it has already paid security for costs in the sum of $2,230 which canbe released in part payment of this sum. There is also no reason to think that a publicbody such as the respondent could not promptly repay costs should a further challengeto the decision be pursued to a successful conclusion and the costs award set aside.[16] The request to defer both the fixing and payment of costs in relation to the 2017decision is therefore declined.Solicitors:Ronald W Angland & Sons, LeestonSimpson Grierson, Christchurch