NGĀTI HURUNGATERANGI & ORS v NGĀTI WĀHIAO [2018] NZHC 1991

NGĀTI HURUNGATERANGI & ORS v NGĀTI WĀHIAO [2018] NZHC 1991 [7 August 2018]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2013-463-000448[2018] NZHC 1991BETWEEN NGĀTI HURUNGATERANGI, NGĀTITAEOTU ME NGĀTI TE KAHU O NGĀTIWHAKAUEPlaintiffsAND NGĀTI WĀHIAODefendantHearing: (On the papers)Counsel: Craig Orton for the PlaintiffsAngelo Papageorgiou and Felix Geiringer for DefendantJudgment: 7 August 2018[COSTS] JUDGMENT OF MOORE JThis judgment was delivered by me on 7 August 2018 at 2:30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] For over five years the parties in this proceeding have been involved in adispute in various fora about who has mana whenua over lands near Rotorua knownas Whakarewarewa and Arikikapakapa ("the lands"). Now that the Court of Appealhas referred the dispute back to arbitration,1 costs are sought on various steps taken inthis Court. This judgment resolves those applications.Background[2] To understand why the proceedings have reached this stage, and the steps forwhich costs are now sought, some context is required.[3] In 2008, over 100 years after decisions of the Native Land Court enabled theCrown to acquire the lands, it agreed to return them to the parties: NgātiHurungaterangi, Ngāti Taeotu me Ngāti Te Kahu o Ngāti Whakaue ("NgātiWhakaue"), and those hapū comprising Tuhourangi Ngāti Wāhiao ("Ngāti Wāhiao").Ngāti Whakaue and Ngāti Wāhiao were unable to agree on which was entitled to thelands, but agreed to establish a joint trust to take title to the lands until determinationof their competing claims.[4] Eventually, their dispute over who had mana whenua was referred to arbitrationunder the trust deed. The arbitral panel delivered an interim decision on 7 June 2013which it adopted in whole as the final award on 14 November 2014. It determinedthat the lands should be apportioned equally between Ngāti Whakaue and NgātiWāhiao.[5] Ngāti Whakaue were dissatisfied and challenged the award, seeking leave toappeal to the High Court. Duffy J declined to grant leave,2 and an application in thisCourt for to appeal that decision to the Court of Appeal was also declined ("First Leaveto Appeal to CA Decision"), but special leave was granted by the Court of Appeal.31 Ngāti Hurungaterangi v Ngāti Wahiao [2017] NZCA 429, [2017] 3 NZLR 770 [Substantive CADecision].2 Ngāti Hurungaterangi v Ngāti Wahiao [2014] NZHC 846 [HC Leave Decision].3 Ngāti Hurungaterangi v Ngāti Wahiao [2014] NZCA 592 [CA Special Leave Decision].[6] Duffy J granted the parties leave to file memoranda as to costs on her decision.4In a Minute dated 24 March 2015, she declined to deal with the Ngāti Wāhiao's costsapplication on the basis her decision had been successfully appealed to the Court ofAppeal. But she reserved leave to make further applications at a later date if the partiescould not agree.[7] I then heard the substantive appeal. In a decision of 1 July 2016 I dismissed it,finding there were no errors of law in the panel's decision.5 I indicated Ngāti Wāhiao,as the successful party, was entitled to costs on a 3B basis, which the parties agreedwas the appropriate scale.6 But I later granted leave for Ngāti Whakaue to appeal mydecision on approved questions of law.7 Because Ngāti Whakaue were successful inthat application, I awarded them costs on a 3B basis.8[8] The Court of Appeal allowed the appeal, finding the panel erred in failing tomake reasoned findings as to who the beneficial owners of the lands were before 1893,failing to determine the parties' claims having regard to those findings, and allocatingbeneficial ownership according to broad conceptions of fairness.[9] The Court of Appeal awarded costs on the appeal, but did not make directionsfor the treatment of costs awarded or yet to be awarded for earlier decisions. That iswhy Ngāti Whakaue have now applied for determination of costs on the earlierproceedings in this Court.The costs application[10] Having succeeded in the Substantive CA Decision, Ngāti Whakaue seek:(a) costs on Duffy J's HC Leave Decision and the First Leave to Appeal toCA Decision; and4 HC Leave Decision, above n 2, at [22].5 Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 1486, [2016] 3 NZLR 378 [Substantive HCDecision].6 At [216]-[217].7 Ngāti Hurungaterangi v Ngāti Wahiao [2016] NZHC 3156 [Second Leave to Appeal to CADecision].8 At [34].(b) costs on my Substantive HC Decision.[11] In his memorandum on behalf of Ngāti Wāhiao dated 5 April 2018,Mr Geiringer:(a) opposes costs being awarded on the HC Leave Decision, on the basisNgāti Whakaue were ultimately successful on a different basis in theSubstantive CA Decision;9(b) accepts costs on the Substantive HC Decision should now be awardedto Ngāti Whakaue, but disputes the quantum of the award sought; and(c) seeks recall of the Second Leave to Appeal to CA Decision, on the basiscosts should be redetermined in light of the Substantive CA Decisionand because Ngāti Wāhiao was not heard on the application.10[12] After inspecting the memoranda filed by the parties, I considered there wassubstantial agreement on the form of an award: having been successful in the Court ofAppeal, Ngāti Whakaue are entitled to costs, on a 3B basis. The question now is whatmatters should be covered by that order, and whether there are any matters justifyingan uplift or reduction in costs. I sought a joint memorandum identifying areas ofagreement and disagreement which needed to be resolved. I also invited counsel to,if possible, reach agreement on how costs on the Second Leave to Appeal to CADecision should be addressed.[13] A joint memorandum was filed on 1 June 2018. Although it helpfully set outareas of agreement, the parties were not able to narrow the issues for resolution.Should costs be awarded to Ngāti Whakaue on the Stage One proceedings?[14] In her Minute of 24 March 2015 Duffy J commented "the basis on which NgātiWāhiao sought costs in this Court no longer exists", and that if the parties could not9 I refer to these as the "Stage One proceedings".10 I refer to the Substantive HC Decision and the Second Leave to Appeal to CA Decision as the"Stage Two proceedings".reach agreement on the appropriate costs to be paid for the Stage One proceedingsthen leave was reserved for them to make a further application for costs. Bymemorandum of 15 March 2018, Ngāti Whakaue sought costs on the Stage Oneproceedings on a 2B basis totalling $15,422.50 and $2,450.76 in disbursements.[15] Ngāti Wāhiao argue no costs should be awarded for the Stage One proceedings,as success in the CA Special Leave Decision which overturned the decisions in thisCourt declining to grant Ngāti Whakaue leave to appeal is not a proper basis to awardcosts. That is because the only ground on which Ngāti Whakaue ultimately succeededwas inadequacy of reasons, a ground not advanced in either Stage One hearing in thisCourt. That ground was argued for the first time in the CA Special Leave Decision.Generally, Mr Geiringer points out the grounds on which leave was granted by theCourt of Appeal are formulated differently from the grounds argued in this Court.[16] Analogy with Ireland v Grant is available.11 In that case Gendall J originallyawarded costs to the party that successfully opposed leave being granted to the Courtof Appeal. Special leave to appeal was granted by the Court of Appeal, although theappeal proper was unsuccessful. When the matter returned to the High Court on thequestion of costs, the appellant argued the leave costs award should be varied underr 14.8(2) as the Court of Appeal's special leave decision showed the order decliningleave should not have been made. Gendall J declined to vary the award. His reasonsare instructive:12(a) the ultimate outcome revealed the leave decision was correct;(b) the discretion to grant leave in the High Court and special leave in theCourt of Appeal are separate and distinct jurisdictions, and the fact thatthe Court of Appeal granted special leave does not mean that the HighCourt ought not to have granted leave; and(c) all awards of costs are specific to the individual circumstances of thecase.11 Ireland v Grant [2016] NZHC 2752.12 At [24].[17] In the particular circumstances of this case the proper outcome is that costs liewhere they fall. For the reasons set out by Mr Geiringer, the CA Special LeaveDecision has not shown either Stage One proceeding in this Court to be in error. Infact all of the grounds of appeal advanced in this Court during the Stage Oneproceedings ultimately failed; the ground on which Ngāti Whakaue ultimatelysucceeded was the ground which appeared for the first time in the CA Special LeaveDecision.[18] In that context I do not consider Ngāti Whakaue is entitled to costs for the StageOne proceedings in this Court. Neither do I consider Ngāti Wāhiao should be awardedcosts, as Mr Geiringer responsibly accepts. I agree that the appropriate order in thecircumstances is that costs on these proceedings should lie where they fall.What costs should be awarded for the Substantive HC Decision?[19] Ngāti Wāhiao concedes Ngāti Whakaue is entitled to 3B costs. Ngāti Whakaueseeks costs and disbursements totalling $32,928.01 in relation to the Substantive HCDecision. This amount represents an adjusted figure which reflects some of NgātiWāhiao's objections. Ngāti Wāhiao continues to dispute the quantum, and submits nomore than $22,784.25 should be awarded.[20] I agree that some adjustment is necessary for the $3,048.76 in disbursementsNgāti Whakaue claims for preparing a transcript of the arbitration for the purpose ofthe appeal. Mr Geiringer advises (without disagreement from Mr Kahukiwa) that thetranscript was over two months late and unusable. Ultimately Ngāti Wāhiao wasrequired to pay to correct the transcript. Disbursements are only to awarded to theextent they are reasonably necessary for the conduct of the proceeding. Given theexpense Ngāti Wāhiao was put to in correcting the transcript, I do not consider thecosts incurred by Ngāti Whakaue were reasonably necessary and claimable asdisbursements.[21] Otherwise I do not consider adjustment from the amount claimed is necessary.While in no Court did Ngāti Whakaue succeed in its argument concerning s 348 of theTe Ture Whenua Māori Act 1993, that by itself is not a basis on which to reduce costs.The argument was not so meritless that it unnecessarily contributed to the expense ofthe proceeding. The Court of Appeal's ultimate conclusion, framed similarly to myown, was while it was "regrettable that the panel did not directly address" thisargument, consideration of it was nevertheless implicit in its decision.13 Thisconclusion is reinforced by the Court of Appeal not making any reduction in costs onthis basis. I see no reason to depart from that position.[22] Likewise I do not consider the delay caused by Ngāti Whakaue's failure toproduce a workable transcript is grounds for a global reduction. That factor has beenadequately taken into account in declining to award Ngāti Whakaue disbursements forthis step.How should the Second Leave to Appeal to CA Decision costs awarded be dealtwith?[23] I awarded $19,870.80 in costs to Ngāti Whakaue in relation to its successfulapplication to appeal the Substantive HC Decision. Ngāti Wāhiao now seeks that thedecision be recalled on the basis the award was obtained without Ngāti Wāhiao beingserved with the application.[24] Rather than ordering recall, I prefer to exercise my power under r 14.8(2) ofthe High Court Rules 2016 ("the Rules") to vary the earlier order for costs. I considerthe application and my order fits within the definition of interlocutory application andorder in the Rules,14 or is sufficiently analogous that r 14.8(2) should apply in termsof r 1.6.15 Moreover I consider variation is appropriate both in light of the Court ofAppeal's decision and the fact Ngāti Wāhiao did not earlier have an opportunity torespond.[25] Because the application for leave to appeal was an interlocutory application,costs are not claimable under steps 37 and 40-43. That means Ngāti Whakaue is13 Substantive CA Decision, above n 1, at [94] and Substantive HC Decision, above n 5, at [72]-[73].14 The position taken by the learned authors of McGechan on Procedure (online looseleaf ed,Thomson Reuter,) at [HR26.14.01] is that such applications for leave to appeal to the Court ofAppeal under cl 5(1)(a) or (b), sch 2 of the Arbitration Act 1996 are interlocutory applications.Given the similarity in the procedure under rr 26.14 and 26.19, there is no reason in principle whythe same would not be true of applications for leave to appeal to the Court of Appeal under cl5(1)(c).15 See Lawson v Wenley (No 2) [2012] NZHC 1265 at [7].entitled to $1,980 for the preparation and filing of the application only. As for theremaining steps, I accept that:(a) Ngāti Whakaue relied on the Case on Appeal bundle at the leavehearing, so no costs are claimable for the preparation of a bundle forhearing;(b) unspecified "office charges" of $168.70 are not recoverabledisbursements;16 but(c) I indicated in my decision costs were to include the appearance ofsecond counsel, and I see no reason to order otherwise now.17[26] Accordingly I vary my earlier costs order and award Ngāti Whakaue costs anddisbursements in the sum of $9,405.Orders[27] Costs on the Stage One proceedings are to lie where they fall.[28] Ngāti Whakaue is entitled to costs and disbursements totalling $29,879.25associated with the Substantive HC Decision.[29] Ngāti Whakaue is entitled to costs and disbursements totalling $9,405associated with the Second Leave to Appeal to CA Decision.Moore JSolicitors/Counsel:Corban Revell, AucklandMr Geiringer, WellingtonMr Papageorgiou, Wellington16 Opus International Consultants Ltd v Colac Bay Vision Ltd [2015] NZHC 2702 at [7].17 Second Leave to Appeal to CA Decision, above n 7, at [34].