OPUA COASTAL PRESERVATION INCORPORATED v FAR NORTH DISTRICT COUNCIL [2020] NZCA 281

OPUA COASTAL PRESERVATION INCORPORATED v FAR NORTH DISTRICT COUNCIL [2020]NZCA 281 [13 July 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA119/2017[2020] NZCA 281BETWEEN OPUA COASTAL PRESERVATIONINCORPORATEDAppellantAND FAR NORTH DISTRICT COUNCILFirst RespondentMINISTER OF CONSERVATIONSecond RespondentDOUGLAS CRAIG SCHMUCKThird RespondentCourt: Brown and Gilbert JJCounsel: T H Bennion and E A Whiley for AppellantJ G A Day for First RespondentB R Arapere and W M C Randal for Second RespondentJ A Browne and C H Prendergast for Third RespondentJudgment:(On the papers)13 July 2020 at 10.30 amJUDGMENT OF THE COURTCostsA The appellant must pay the first respondent costs of $9,589.00 anddisbursements of $1,384.00.B The appellant must pay the third respondent costs of $11,819.00 anddisbursements of $3,236.90.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] In a judgment dated 20 July 2018 this Court allowed an appeal against theHigh Court judgment and directed that the Far North District Council (the Council)and Mr Schmuck were jointly and severally liable to pay Opua Coastal PreservationInc (Opua) one set of costs for a standard appeal on a band A basis and usualdisbursements.1[2] The Supreme Court allowed an appeal on 29 October 2019.2 In a subsequentjudgment dated 23 December 2019 the Supreme Court quashed this Court's costsorder and directed this Court to redetermine costs in the light of the Supreme Court'sjudgment allowing the appeal.3[3] The Council seeks costs on a band A basis ($9,589.00) together withdisbursements of $1,384.00. Mr Schmuck also seeks costs on a band A basis($11,819.00)4 and disbursements of $3,236.90.[4] Mr Bennion for Opua submits that given the public interest in the appealrebounded mostly to the benefit of the Council and the fact that Mr Schmuck took thelead role in the appeal while the Council took a limited role, costs in relation to theCouncil should lie where they fall. He further submits that any award of costs toMr Schmuck should be reduced by 50 per cent to account for Opua's success on anissue of some public interest.[5] We do not agree with the submissions for Opua. We note that theSupreme Court, while accepting that there was some public interest to Opua'sposition, considered that that was limited and did not justify an order that costs shouldlie where they fall.5 Making a small allowance for the public interest aspect of the1 Opua Coastal Preservation Inc v Far North District Council [2018] NZCA 262.2 Schmuck v Opua Coastal Preservation Inc [2019] NZSC 118.3 Schmuck v Opua Coastal Preservation Inc [2019] NZSC 155.4 The additional $2,230 concerns an application for increased security for costs ($1,115) and secondcounsel ($1,115).5 Schmuck v Opua Coastal Preservation Inc, above n 3, at [8].appeal and reflecting the parties' different roles, the Supreme Court awarded MrSchmuck $20,000 and the Council $15,000, but with usual disbursements.[6] In our view, the costs sought by the Council and Mr Schmuck, which aresignificantly less than the sums awarded in the Supreme Court, are reasonable and nodeduction for a public interest factor is required.Result[7] Opua must pay the Council costs of $9,589.00 and disbursements of $1,384.00.[8] Opua must pay Mr Schmuck costs of $11,819.00 and disbursementsof $3,236.90.Solicitors:Bennion Law, Wellington for AppellantLaw North Limited, Kerikeri for First RespondentCrown Law Office, Wellington for Second RespondentHenderson Reeves Lawyers, Whangarei for Third Respondent