HOJSGAARD v CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND [2019] NZCA 84

HOJSGAARD v CHIEF EXECUTIVE OF LAND INFORMATION NEW ZEALAND [2019] NZCA 84 [2 April2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA223/2018CA520/2018[2019] NZCA 84BETWEEN PETER HOJSGAARDAppellantAND CHIEF EXECUTIVE OF LANDINFORMATION NEW ZEALANDFirst RespondentROBIN PATRICK BRILLSecond RespondentHearing: 17 and 18 October 2018Court: French, Clifford and Gilbert JJCounsel: P H Thorp and M Singh for AppellantM J Bryant and D J Watson for First RespondentM C Harris and M J Hammer for Second RespondentJudgment: 2 April 2019 at 11 amJUDGMENT OF THE COURTAppeal CA223/2018A The appeal CA223/2018 is allowed to the extent that we find theHigh Court erred in declining to quash the decision of the first respondentapproving the survey of the second respondent for integration into thecadastre under s 9 of the Cadastral Survey Act 2002.B The decision of the first respondent is quashed and the first respondent isdirected to reconsider the correctness of the second respondent's surveyin light of all the evidence now available to the first respondent.C In all other respects the decision of the High Court is affirmed.D The first respondent must pay the appellant costs for a standard appealon a band A basis with usual disbursements. We certify for secondcounsel.E The appellant must pay the second respondent costs for a standard appealon a band A basis with usual disbursements. We certify for secondcounsel.Appeal CA520/2018A The appeal in CA520/2018 is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Hojsgaard owns land in Omapere near the Hokianga Harbour.He challenges a recent survey of a neighbouring property which he says adverselyaffects him because the boundaries depicted in the survey do not allow for the locationof an historic stream.[2] The survey was undertaken by the second respondent Mr Brill and approvedby the first respondent the Chief Executive of Land Information New Zealand(the Chief Executive).[3] Mr Hojsgaard commissioned his own survey by another surveyor Mr Thomsonwhich he considered accurately depicted the boundaries.1 Mr Hojsgaard then issuedproceedings in the High Court. He sought judicial review of the Chief Executive'sdecision approving the Brill survey. He also sought declarations under the Declaratory1 The actual survey was conducted by a Mr Lee but under the direction of Mr Thomson andaccordingly for ease of reference we refer to it in the judgment as the Thomson survey.Judgments Act 1908 to the effect that the Thomson survey was correct and should besubstituted for the Brill survey.[4] The claim was heard by Jagose J. The Judge found that in deciding whether toapprove the Brill survey, the Chief Executive had failed to consider a mandatoryrelevant consideration and directed him to reconsider his decision.2 The Judge wasnot however prepared to quash the decision.3 He was also not prepared to grantthe declarations sought by Mr Hojsgaard.4[5] Mr Hojsgaard now appeals. He also separately appeals a subsequent costsdecision made by Jagose J.5 The substantive appeal has been allocated the filingnumber CA223/2018. The costs appeal is CA520/2018.[6] In order to explain the factual and legal issues arising on the appeals, it isnecessary first to examine the statutory context.The statutory context[7] At the heart of this case is the Cadastral Survey Act 2002 (the Act). The term"cadastral survey" is not one used in common parlance. It means the determinationand description of the spatial extent — including boundaries — of interests under landtenure systems.6 The term "cadastre" which is also used in the Act means allthe cadastral survey data held by or for the Crown and Crown agencies.7 Underthe New Zealand system of land tenure, the cadastre underpins the issue and guaranteeof titles.[8] The cadastre's integrity is therefore of paramount importance and this isreflected in one of the express purposes of the Act which is to promote and maintainthe accuracy of the cadastre.8 Section 3(a) states this is to be achieved by requiring2 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750, [2018] 3NZLR 99 [High Court Judgment] at [105] and [110].3 At [106]–[108].4 At [109].5 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 2188[Costs Judgment].6 Cadastral Survey Act 2002, s 4.7 Section 4.8 Section 3(a).cadastral surveys to be undertaken by licensed cadastral surveyors, who must meetcertain standards before being licensed, and by making provision for the setting ofstandards for cadastral surveys and cadastral survey data. Both Mr Brill andMr Thomson are licensed cadastral surveyors.[9] As we go on to explain in greater detail, the standards include provisions aboutboundaries and water boundaries.9 Land bounded by water boundaries is subject tospecific legal and surveying considerations and as an expert witness put it in theirevidence before the High Court, it is accordingly essential that surveys record currentand former positions of relevant water body margins correctly, clearly andunambiguously.[10] Under the Act, the function of approving a new cadastral survey for integrationinto the cadastre is reposed in the Chief Executive.10 He or she must first be satisfiedthat the survey complies with the Act and with standards promulgated by theSurveyor-General regulating the conduct of surveys. The standards are contained inthe Rules for Cadastral Survey 2010 (the Rules). The Rules have the status ofregulations.11[11] Boundaries including water boundaries are governed by r 6. Rule 6.1 stipulatesthat when a cadastral surveyor is defining a boundary by survey, they must:(a) gather all evidence relevant to the definition of the boundary and itsboundary points;(b) interpret that evidence in accordance with all relevant enactments andrules of law; and(c) use that evidence to determine the correct position of the boundary andboundary points in relation to other boundaries and boundary points.9 A water boundary is a boundary set at the landward margin of a river bed or stream bed; a lakebed; or the common marine and costal area or other tidal area: Rules for Cadastral Survey 2010,r 2. Water boundaries can be marked against the present or former course or location of a waterway.10 Section 9(a) and (d).11 Section 49.[12] Rule 6.2 lists the types of boundaries or boundary points which must be definedby survey. These include not only "a new water boundary or irregular boundary",12but also "an existing irregular boundary that has been converted into one or moreright-line boundaries" and a "boundary where its extent and location as defined in anapproved CSD [cadastral survey dataset] are insufficient for the determination of itscompliance with the applicable accuracy standard."13 A "right-line" boundary isdefined as one that follows the shortest distance between two boundary points.[13] Rule 6 goes on to say that when the margin of the water body defining a waterboundary has moved but the boundary has not moved, that boundary must beconverted to one or more right-line boundaries or may become an irregular boundaryif it meets certain specified criteria.14[14] Significantly for present purposes, r 3.4(a)(i) provides that the position of awater boundary or an irregular boundary, including one defined by adoption, must bedetermined to a sufficient level of accuracy to take into account the risk of overlap orambiguity in boundaries including the water boundary on the other side of the waterbody.15[15] Also significant for present purposes is r 8. It requires a cadastral surveydataset to include a survey report.16 The report must amongst other things providedetails of any conflict between the new survey being submitted for approval and an12 An irregular boundary is a boundary that is depicted as an irregular line but is not a water boundary.An irregular line is a line consisting of a series of connected vertices that are usually irregularlyspaced and not on a single alignment. A right-lined boundary is a boundary that follows theshortest distance [in a straight line] between two boundary points. Right-line boundaries appearto be commonly drawn by surveyors where there is insufficient information to define the boundarywith any more detail or complexity. See Rules for Cadastral Survey, r 2.13 Rules for Cadastral Survey, r 6.2(a)(i), (iii) and (vii).14 Rule 6.7(a).15 Defined by adoption means that an existing boundary or boundary point has not been defined bysurvey or accepted: Rules for Cadastral Survey, r 2. That is, a surveyor has defined an existingboundary or boundary point using information from either, a prior cadastral survey dataset thathas already been integrated into the cadastre or, in the absence of such information, from an estaterecord held by the tenure system manager. The surveyor must have ensured that the adopted workmeets accuracy tolerances and that there is no known evidence of conflict.16 Rule 8.2(a).existing survey in the cadastre.17 The survey report is also required to provide detailsof how the surveyor resolved the conflict.18[16] In a previous judgment — Chief Executive Land Information New Zealand vTe Whanau O Rangiwhakaahu Hapu Charitable Trust (Otito Reserve)19 — this Courtheld that if there is a conflict between surveys, compelling evidence is required beforethe decision maker can conclude the earlier plan is in error and should be replaced,notwithstanding the consequential prejudice that might otherwise be caused to thosewith interests in the land.20 A very "high standard of satisfaction" as to the existenceof error was said to be required.21[17] The Court's statements reflect long established surveying practice. In thepresent case, for example, all the expert surveying witnesses agreed as a matter ofsurveying practice that existing survey plans are presumed to be correct once approvedas to survey (the presumption of correctness). They also agreed that compellingevidence is required to move boundaries established by such survey plans. Certaintyis important for obvious reasons.22[18] Once a survey is integrated into the cadastre, it is not however set in stone.The Act provides a mechanism for correction in s 52. Section 52 empowersthe Surveyor-General to correct errors in a cadastral survey dataset affecting title.The provision features large in this case and accordingly we set out its text in full.52 Correction of errors in survey(1) If an error is found in a cadastral survey dataset affecting any titleunder the Land Transfer Act 2017 or any title or tenure under any otherAct, the Surveyor-General may, in writing, require the cadastralsurveyor responsible for the error to undertake, or arrange to beundertaken, the work necessary to correct the error within a time thatthe Surveyor-General considers reasonable.(2) Subsection (1) does not limit—17 Rule 8.2(a)(v).18 Rule 8.2(a)(v).19 Chief Executive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu CharitableTrust [2013] NZCA 33, [2013] NZAR 539 [Otito Reserve].20 At [91] and [107].21 At [107]. The Court preferred the formulation of "high standard of satisfaction" to high standardof proof".22 It was common ground in this case that the compelling reason standard and presumption ofcorrectness applies whether title has issued in reliance on the survey or not.(a) the powers granted in sections 7 and 46 of the Crown GrantsAct 1908:(b) the powers of the Registrar under section 21 of the LandTransfer Act 2017, or the provisions of section 226 of that Act:(c) the powers of any court under any enactment.(3) In subsection (1), cadastral surveyor includes a former licensedcadastral surveyor and a person who was a registered surveyor underthe Survey Act 1986.[19] Otito Reserve confirmed that in exercising the power of correction under s 52,the Surveyor-General must adopt the same standard as applies to the Chief Executivewhen making decisions at the approval stage.23 That is to say, he or she should onlyfind error if there is compelling evidence of error.24[20] In the Otito Reserve litigation, the then Surveyor-General gave evidence thatin order to exercise the s 52 jurisdiction he considered he needed to be satisfied thatthe effect of the error was sufficiently serious to warrant correction and that acorrecting survey was the best mechanism of correcting the cadastral survey, havingregard to any impact on the tenure systems that depended on the cadastre.25The trial judge (Heath J) endorsed those propositions as did (impliedly) this Court.26They are consistent with s 7(2)(b) of the Act which stipulates the factorsthe Surveyor-General must consider when exercising any of his or her statutoryfunctions.[21] We turn now to address the background of the case before us in more detail.Background of this case[22] The legal description of the land owned by Mr Hojsgaard at issue isLot 1 DP 146636 contained in Certificate of Tile CTNA87B/961. Deposited planDP146636 was a survey undertaken in 1991 by a Mr Wright ("the Wright survey").23 Otito Reserve, above n 19, at [127].24 At [91] and [107].25 At [78].26 At [90] citing Te Whanau O Rangiwhakaahu Hapu Trust v Department of ConservationHC Whangarei CIV-2008-488-548, 22 December 2010 at [104].[23] The neighbouring block of land which was surveyed by Mr Brill is Māorifreehold land known as Omapere B. It is to the north and west of Mr Hojsgaard's landas shown in the map attached to this judgment.[24] The Brill survey of Omapere B was commissioned by the Māori Land Courtas part of its Māori Freehold Land Registration project. A key step in the creation ofMāori freehold title is a survey plan approved as to survey by the Chief Executive.Title is created when the Māori Land Court approves the plan and issues the title.27[25] Mr Brill's survey depicted the southern and eastern boundaries of Omapere Bas abutting directly against the northern and western boundaries of Mr Hojsgaard'sland.[26] Mr Hojsgaard contends this was contrary to the earlier Wright survey of hisproperty which he says correctly depicted his western boundary as the left hand bankof a former stream. Further, according to Mr Hojsgaard, the Wright survey's depictionof the boundaries was consistent with a series of surveys of the general area. He saystoo that the Wright survey featured in another unrelated High Court judgment in whichthe Judge noted there was no challenge before the Māori Land Court to Mr Wright'splotting of the former course of the stream.28[27] Mr Hojsgaard claims the error in the Brill survey adversely affects him becauseit dispossesses him of riparian rights and prevents him from marketing the sale of hisland as "waterfront".29[28] It is common ground that there used to be a stream in the area running out tothe Hokianga Harbour and also common ground that in 1907 the stream dramaticallyand suddenly changed course as the result of heavy rains in the hills behind Omapere.What is disputed is exactly where the pre-avulsion stream used to flow before 1907. 3027 Māori Land Court Rules 2011, rr 2.5 and 7.7(4).28 Pennell v District Land Registrar HC Auckland M187/79, 16 July 1998.29 Riparian rights are the bundle of rights of landowners whose property runs into or along the presentor former course or location of a river.30 Avulsion means the sudden separation of land from one property and its attachment to another,especially by flooding or a change in the course of a river.[29] Contrary to Mr Hojsgaard's contention, Mr Brill is of the view that the streamnever separated what is now Mr Hojsgaard's land from Omapere B, but rather flowedthrough a gully located within Mr Hojsgaard's land.[30] An added complication is that Mr Wright's survey plan, on whichMr Hojsgaard relies and which he says should have been afforded the presumption ofcorrectness by Mr Brill and the Chief Executive, does not explicitly depict the bank ofthe dried stream bed as the north-west boundary of the Hojsgaard land. The stream isonly mentioned in a survey report written by Mr Wright in which he records"originally the property had frontage to the stream along the western boundary andthis would have been used for access".[31] Mr Wright's survey relevantly refers to three previous surveys in the area andtheir relationship with Lot 1, now Mr Hojsgaard's land.[32] The first of these in time was an 1859 survey of land said to be gifted to aMr Martin by the local hapu Ngati Korokoro through the Crown. In relation to this1859 survey, Mr Wright concludes that part of the land surveyed in 1859 includedLot 1. The significance of this is that the 1859 survey shows most of the westernboundary of the land it was surveying as a blue wash strip labelled "creek."[33] The second survey cited by Mr Wright is an 1886 survey of another nearbyparcel of land claimed by Māori interests. This 1886 survey shows the stream as theboundary between the land claimed by Māori and the Martin land surveyed in 1859.Mr Wright's survey plan depicts the 1886 survey as an abuttal to Mr Hojsgaard's Lot 1.[34] The third survey plan referred to by Mr Wright is a survey undertaken in 1951by a Mr Hosking. It was of a piece of land abutting the eastern boundary of theWright survey. As it happens, Mr Hojsgaard owns this land as well as the landsurveyed by Mr Wright. Mr Wright mentions the Hosking 1951 survey in his report.The reference comes as part of the sentence in which he states that originallythe Hojsgaard property at issue had frontage to the stream along the western boundary.The full sentence reads:Originally the property had frontage to the stream along the western propertyand this would have been used as access; the present situation is that [theHosking 1951 survey] deprived them of this. (emphasis added)[35] The obvious ambiguities in the Wright survey have generated arguments as toits interpretation and consistency with the previous surveys. At the High Courthearing, the expert witnesses used illustrations of the 1886 and 1951 surveys overlaidon a 1942 aerial photograph to undermine or to support the Wright survey. Mr Brill'sposition is that if the Wright survey does depict the stream as forming the boundarythen it was an error. In his view, the survey was not created with reference to anyobjectively reliable indication of the stream's historic path.[36] This is very much disputed by Mr Hojsgaard. He contends the evidenceprimarily relied upon by Mr Brill is a category of evidence which surveyors considerto be at the bottom of what they call "the hierarchy of evidence". As explained bythis Court in Otito Reserve, the hierarchy of evidence is a principle or guideline thataccords varying weight to different types of evidence when determining disputedboundaries.31 The generally accepted order is to attach greater weight to the points onwhich the parties were least likely to be mistaken at the time.32 Thus, evidence ofnatural boundaries comes first in the hierarchy followed by monumented lines such asoriginal pegs, undisputed occupations, then abuttals and finally calculations based onstated figures, deeds, grants and titles.33[37] The Court however also stated that the hierarchy of evidence is a guide ratherthan a straitjacket.34 If the circumstances make it clear that a piece of evidence furtherdown the hierarchy is a more reliable indication of the parties' intention then it maytake precedence.35[38] Another argument between the parties is whether a survey report as distinctfrom a survey plan is in any event capable of attracting the presumption of correctness.31 Otito Reserve, above n 19, at [111].32 At [112].33 At [111]. Monumented lines are boundaries marked by survey or other defining marks, natural orartificial.34 At [112].35 At [112].[39] Returning to the narrative of events, the Chief Executive acting through adelegate approved the Brill survey on 16 December 2010. It was then integrated intothe cadastre. It is not clear whether the Chief Executive's delegate was aware ofMr Wright's survey report (as opposed to his survey plan) although it wasacknowledged it would have been possible for the delegate to have obtained a copy.[40] Mr Hojsgaard engaged Mr Thomson in 2015. Mr Thomson considered theBrill survey contained two errors. The first was that he had overlooked a partitionorder made by the Māori Land Court and as a result had wrongly included inOmapere B another block of land known as Omapere A. All parties including Mr Brillhimself and the Surveyor-General agree this was an error. In response to a directionfrom the Surveyor-General under s 52, Mr Brill has prepared a replacement survey,depicting Omapere A as a separate parcel of land.[41] The second error alleged by Mr Thomson was the placement of the easternboundary of Omapere B as abutting Mr Hojsgaard's western boundary. As alreadymentioned, Mr Brill does not accept this was an error.[42] Mr Thomson's firm prepared a survey plan of the Hojsgaard land at issue andthe nearby block of land surveyed by Mr Hosking in 1951 which as mentioned is alsoowned by Mr Hojsgaard. The Thomson survey plan is what is called a"redefinition survey".36[43] The Thomson survey depicts a hydro-parcel separating the Hojsgaard land atissue and Omapere B at the western boundary of the former.37 The hydro-parcel isclaimed to represent the historical location of the stream.[44] The Thomson survey was submitted to the Chief Executive for approval inSeptember 2015. This was declined on the grounds that, because it was aboundary-marking cadastral dataset of the two Hojsgaard blocks, it was not permittedto create new parcels nor to affect the definition of Omapere B. The benefit of theThomson survey to Mr Hojsgaard was of course solely in the hydro-parcel and if this36 Specifically a "Boundary Marking – Full Cadastral Data Set (Conflict) Cadastral Data Set".37 A hydro-parcel is the area between two water boundaries.were disallowed, the only effect of the survey would be to confirm the undisputedboundaries of his two blocks of land.[45] Mr Hojsgaard then made three separate requests to the Surveyor-General toexercise his powers under s 52 and require Mr Brill to amend his survey so as to depictthe hydro-parcel. The requests were supported by a large quantity of information.This was considered by the Surveyor-General along with other material which heobtained of his own initiative.[46] The Surveyor-General declined to exercise his s 52 power on the grounds hewas not satisfied to the requisite standard there was an error in Mr Brill's survey asalleged.[47] Finally, in this recital of the background history, we record that the Brill surveyhas not yet been approved by a Judge of the Māori Land Court and accordingly acomputer freehold register has not yet been issued in relation to Omapere B.The High Court proceedingThe statement of claim[48] After his first request to the Surveyor-General was declined, Mr Hojsgaardissued proceedings in the High Court. The statement of claim underwent a number ofiterations.[49] Initially, the claim was against the Surveyor-General and Mr Brill. As againstthe Surveyor-General, Mr Hojsgaard sought judicial review of the decision to approvethe Brill Survey and an order quashing that decision.38 As against Mr Brill, theproceeding sought declarations that his survey was wrong and also alleged negligence.Damages were sought against Mr Brill and an injunction directing him to re-submit asurvey replicating the Thomson survey.38 The Surveyor-General was not the correct defendant as the decision being impugned was madeby the Chief Executive.[50] Following a case management conference, the claim was amended inJanuary 2017 so as to remove the Surveyor-General as a defendant and replace himwith the Chief Executive. The claim for judicial review and the negligence claim werealso removed. Declarations were sought that the location and area of the hydro-parcelin the Thomson survey was correct and that the only survey entitled to be approvedwas one that corresponded with the Thomson survey.[51] During the hearing in August 2017, Jagose J expressed misgivings about theapplication under the Declaratory Judgments Act. The Judge granted leave toMr Hojsgaard to reinstate the judicial review cause of action and to seek an orderquashing the decision to approve the Brill survey for integration into the cadastre.39[52] In its final version, the statement of claim pleaded the relief sought in thefollowing terms:(a) The review and quashing of the approval decision (the approvaldecision being defined as the decision to approve the Brill survey forintegration into the cadastre).(b) A declaration that the location and area of the hydro-parcel inthe Thomson survey is correct and in compliance with the standards.(c) A declaration that only a cadastral survey dataset that identifiesthe southern and eastern boundary of Omapere B as corresponding withthe right bank of the hydro-parcel in the Thomson survey and excludesOmapere A is entitled to be approved as to survey in substitution forthe Brill survey.[53] The pleaded claim for relief did not differentiate between the two defendants,but obviously "the review and quashing of the approval decision" applied only tothe Chief Executive.39 Hojsgaard v Chief Executive of Land Information New Zealand HC AucklandCIV-2016-488-000012, 23 August 2017.Evidence at the hearing[54] The hearing lasted eight days. The evidence called included evidence fromprevious occupiers of the area, a local kaumatua, surveyors, geologists, anarchaeologist, a property consultant and a forester.[55] In accordance with common practice, a panel of expert surveying witnesseswas convened and gave evidence concurrently in a "hot tub" format.40 The panelincluded Mr Brill and the surveyor from Mr Thomson's firm who had carried out theThomson survey under Mr Thomson's direction.[56] Significantly, the panel agreed that although the Wright survey plan does notexplicitly depict any stream at the western boundary, it did inferentially. The paneldrew this inference having regard to the indication of a water boundary or body in the1859 survey, the depiction of the stream in the 1866 survey, Mr Wright's references tothose two surveys and the statement in his report about Lot 1 originally havingfrontage to the stream. In surveying terms, the panel interpreted the statement in hissurvey report (quoted above at [34]) as meaning he had defined the north westernboundary by right-lining the former course of the stream.The High Court judgmentThe unsuccessful application for declaratory relief[57] As already mentioned, during the hearing the Judge expressed misgivingsabout the application for declaratory relief. Those misgivings were subsequentlyconfirmed and explained in the judgment.41[58] The Judge acknowledged the Court had a supervisory jurisdiction over boththe Surveyor-General and the Chief Executive.42 However he considered it would bean inappropriate exercise of that jurisdiction for the Court to substitute itsdetermination for that of the Surveyor-General and the Chief Executive, which he said40 As noted by Jagose J at [22], the "hot tub" format is explained in Commerce Commission v CardsNZ Ltd (No 2) (2009) 19 PRNZ 748 (HC) at [5].41 High Court Judgment, above n 2, at [65]–[77].42 At [70].was effectively what Mr Hojsgaard was asking the Court to do.43 To accede to thatrequest would in the Judge's view be to cut across the statutory regime and create aright of general appeal where none existed.44 Parliament had provided a statutorymechanism for error correction (s 52) and its clear intention was to locateresponsibility for the cadastre's desired accuracy in the two statutory office holders.45[59] Secondly, the Judge said another reason for refusing the declaratory reliefsought was that almost the entire dispute rested on heavily contested facts and that initself rendered exercise of the declaratory jurisdiction inappropriate.46Review of the Chief Executive's approval decision[60] Notwithstanding the agreed position of the panel, the Judge was not preparedto find one way or the other whether the western boundary of the Wright survey wasdepicted by a right-lined former water boundary.47 It followed he did not make afinding as to whether the Brill survey (which did not claim any movement of a waterboundary or conversion to a right-lined boundary) was in conflict with theWright survey. In Jagose J's assessment, the Wright survey report was not asdefinitive as the panel thought.48[61] However, the Judge found it was incumbent on the Chief Executive to haveconsidered the issue in order to be able to determine as required whether theBrill survey was in conflict with the Wright survey and if so how that conflict shouldbe resolved.49 There was no evidence the Chief Executive had turned his mind to thepotential conflict and accordingly in judicial review terms the Chief Executive hadfailed to take into account a mandatory relevant consideration.50[62] As regards other criticisms of the Chief Executive advanced by Mr Hojsgaard,the Judge said that none of these amounted to reviewable error. He also considered43 High Court Judgment, above n 2, at [74].44 At [71]–[73].45 At [72].46 At [76].47 At [104].48 At [104].49 At [95]–[96].50 At [97] and [105].that quashing the decision would not be a proportionate response to the error he hadidentified.51[63] The Judge therefore declared in relation to the Chief Executive's determinationof the Brill survey's compliance with the Rules:52(a) The Brill survey adopted as its eastern boundary the western boundaryof the Wright survey.(b) A mandatory relevant consideration for the Chief Executive waswhether the western boundary of the Wright survey is depicted by aright-lined former water boundary.(c) The Chief Executive failed to have regard to that consideration.The Judge then directed the Chief Executive to reconsider and determine whetherthe Brill survey complies with the Rules by reference to whether the western boundaryof the Wright survey is depicted by a right-lined former water boundary.53[64] Dissatisfied with that outcome, Mr Hosjgaard filed this appeal. Execution ofthe Judge's order directing the Chief Executive to undertake a limited reconsiderationhas been stayed pending the outcome of the appeal.54[65] There is no cross-appeal by the Chief Executive. She accepts there was afailure to take into account a mandatory relevant consideration as identified bythe Judge.Grounds of appeal in CA223/2018[66] The Notice of Appeal pleads two grounds of appeal. First, that the Judge waswrong not to quash the approval of the Brill survey and, secondly, that he was wrongto refuse to make any declaration based on the merits of the underlying survey dispute.51 High Court Judgment, above n 2, at [106]–[108].52 At [105].53 At [110].54 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 1563 at [10].[67] The judgment sought from this Court is an order quashing theChief Executive's decision to approve the Brill survey and a declaration that only acadastral survey data set that identifies the southern and eastern boundary of Omapereas corresponding with the right bank of the hydro-parcel in the Thomson survey andexcludes Omapere A, is entitled to be approved as to survey in substitution for theBrill survey.[68] Mr Thorp, counsel for the appellant, acknowledged that in so far as the appealconcerns the issue of relief, it was an appeal against the exercise of a discretion. Healleged the judgment contained several errors.[69] In addressing the key submissions, it is convenient to first consider anargument that relates to both grounds of appeal and which concerns the Judge'sapproach to the facts.AnalysisDid the Judge err in failing to address the merits of the underlying surveying disputeThe argument[70] This issue relates to both the Judge's refusal to quash the approval decision andhis refusal to grant the declaratory relief sought.[71] Mr Thorp contends that the limited relief ordered by the Judge was a directresult of his failure to make factual findings that were available on the evidence andshould have been made. In particular, Mr Thorp submits, the Judge should have madea finding the Brill survey was in conflict with the Wright survey and therefore did notcomply with the standards. He should also have made a finding thatthe Thomson survey correctly located the historic stream in accordance withthe Wright survey. Had those findings been made, then the remedies sought wouldhave followed.[72] Mr Thorp further submits that a key reason why the Judge failed to engage inthe merits of the underlying dispute was because he took an unduly narrow view ofthe Court's supervisory jurisdiction and was therefore led into error. In particular theJudge was wrong to consider that the scheme of the Act precluded access to the Courtto resolve the correct survey outcome in the case of a dispute between surveyors.[73] In Mr Thorp's submission, the hands off approach taken by Jagose J was atodds with the approach taken by Heath J and this Court in Otito Reserve. In that case,a declaration was made that the wrong test had been applied in approving a surveyplan and that it should not have been approved for survey purposes. Mr Thorpacknowledges the Courts in Otito Reserve did not formally quash the approvaldecision, but he says that was only because a new certificate of title had been issuedin reliance on the impugned survey which is not the case here.[74] The jurisdictional arguments relating to the scheme of the Act centre arounds 52 which it is now necessary for us to address in more detail.[75] It will be recalled that s 52 provides:52 Correction of errors in survey(1) If an error is found in a cadastral survey dataset affecting any titleunder the Land Transfer Act 2017 or any title or tenure under any otherAct, the Surveyor-General may, in writing, require the cadastralsurveyor responsible for the error to undertake, or arrange to beundertaken, the work necessary to correct the error within a time thatthe Surveyor-General considers reasonable.(2) Subsection (1) does not limit—(a) the powers granted in sections 7 and 46 of the Crown GrantsAct 1908:(b) the powers of the Registrar under section 21 of the LandTransfer Act 2017, or the provisions of section 226 of that Act:(c) the powers of any court under any enactment.(3) In subsection (1), cadastral surveyor includes a former licensedcadastral surveyor and a person who was a registered surveyor underthe Survey Act 1986.[76] It was common ground that the phrase "the power of any court under anyenactment" must include judicial review proceedings and proceedings under theDeclaratory Judgments Act. In this case, Mr Hojsgaard chose not to seek review ofthe Surveyor-General's refusal to exercise his powers under s 52, but only soughtjudicial review of the Chief Executive's approval decision. However it was alsocommon ground that although s 52 was concerned with the Surveyor-General,decisions of the Chief Executive under the Act were also amenable to judicial reviewas a matter of general law.[77] Section 52 is new in the sense that the previous legislation — the Survey Act1986 — did not have an identical provision. The Survey Act did however contain s 63which provided:63 Disputes may be referred to Surveyor-GeneralAny surveyor who is involved in a dispute with a Chief Surveyorrelating to the application of this Act or any regulations made underthis Act in respect of any survey may require that the dispute bereferred to the Surveyor-General, who shall inquire into it andcommunicate his decision to the surveyor and Chief Surveyorconcerned.[78] The Judge described s 63 as affording "surveyors a dispute resolutionmechanism",55 and appears to have considered the absence of a similar disputeresolution mechanism in the Act as narrowing the scope of the courts' supervisoryjurisdiction. Like the Judge, Mr Thorp also considers the absence of s 63 in the currentlegislation has significance but for the exact opposite reason. He says the absence ofs 63 leaves a gap which the court must step in to fill as there is no other procedurewhereby surveyors who disagree with each other about the correct location or natureof a boundary can achieve an adjudication of their differing views.[79] Mr Thorp urged us to make the factual findings that Jagose J declined to make.He said we were in as good a position as the High Court to do so.Our view[80] In our view, in so far as Mr Thorp's submission relies on the absence of s 63,it is misconceived. It overlooks the critical fact that under the Survey Act, it was theChief Surveyors of each land district that undertook the approval of surveys.56Contrary to Mr Thorp's submissions, s 63 of the Survey Act was not about disputesbetween surveyors but was expressly limited to disputes between a Chief Surveyor andsurveyors. The new Act disestablished the position of Chief Surveyors and conferred55 High Court Judgment, above n 2, at [62].56 Otito Reserve, above n 19, at n 29.the power of approval and integration into the cadastre on the Chief Executive.57 Itwas that change which prompted the need for a different provision.[81] In those circumstances, we do not discern in the absence of s 63 and theenactment of s 52 any intention to affect the scope of the court's supervisoryjurisdiction as it had applied under the Survey Act. That view is supported by ourreading of the background legislative material. There is no suggestion of any suchintention, which one might reasonably expect if such a significant change had beenintended. The only relevant reference we could find was a Departmental Report tothe Select Committee in which it was stated that the clause which was later to becomes 52 "substantially re-enacted a key provision" of the Survey Act and recommendedno change.58[82] It follows we also consider that if the Judge did consider the absence of s 63 ofthe Act had narrowed the court's jurisdiction and that he was thereby precluded fromadjudicating on the merits of the surveying dispute, then that was an error.As Otito Reserve demonstrates, in appropriate cases the court may be able to makefindings that a survey was defective and should not have been approved or should becorrected. However, it all depends on the circumstances and the cogency of theevidence.[83] In this case, as Mr Harris — counsel for Mr Brill — pointed out, there areover 1,750 pages of contested highly technical and complex evidence from 17 experts.It is not a case where an appellate court can efficiently or appropriately be the firstcourt to undertake an analysis and assessment of the evidence. Nor do we consider,notwithstanding the Judge's views on s 63, that he can be criticised for declining tomake the factual findings sought. It was not possible on the material provided for theJudge responsibly to make definitive findings. It follows we would not be preparedto remit the matter back to him. For completeness, we also record that, like the Judge,we would not attach any weight to the reference to the Wright survey in Pennell. The57 Cadastral Survey Act, s 9.58 Land Information New Zealand Land Transfer and Cadastral Survey Legislation BillDepartmental Report (PP 2/9/3 BILLS/LTCS LI 3, 21 February 2001) at 47.interpretation and correctness of the Wright survey was not a contested issue in thatcase.[84] Conscious of these difficulties, Mr Thorp argued that although it may not bepossible on the evidence to say one survey was wrong and the other right, resolutionof the dispute was still possible by simply applying the presumption of correctness.Existing surveys are to be respected and there was insufficient evidence to showthe Wright survey was wrong and therefore insufficient evidence to showthe Thomson survey was wrong. As Mr Thorp put it, there is no need to do any morethan assess whether any of the evidence is capable of being sufficient to defeatthe presumption.[85] However, there are two major flaws in that approach.[86] First, it still needs to be determined what it was the Wright survey depicted andthat too in our assessment is not as clear cut as Mr Thorp suggests. The Judge was notbound to accept the view of the panel. We acknowledge the Judge wrongly said a planattached to Mr Wright's survey plan was not in evidence.59 It was. But even with theassistance of the plan, we like the Judge, are not persuaded Mr Thorp's interpretationof the Wright survey is necessarily correct. We note too that the plan which the Judgeoverlooked appears to depict the course of the stream in a location that is differentfrom the location of the hydro-parcel on the Thomson survey.[87] Secondly, the argument assumes not only that the Thomson survey is faithfulto the Wright survey as interpreted by Mr Hojsgaard (which is debatable as mentionedabove), but that a hydro-parcel is the inevitable consequence of establishing the streamformerly ran along his western boundary.[88] However, that is not the case. It was common ground that in order to sustain ahydro-parcel, Mr Hojsgaard must still establish some sort of proprietary right. He sayshe can do so on the basis of the stream being either tidal or navigable. If tidal,ownership of the dried river bed would vest in the Crown, but he would have riparianrights. If navigable, it may also be owned by the Crown as part of the59 High Court Judgment, above n 2, at [28].Hokianga Harbour or it may be owned by no-one. But again, if it was navigable, hehas riparian rights.[89] We pause here to interpolate that in proceedings currently before the WaitangiTribunal, descendants of the owners of Omapere B contend that if the stream is foundto have been where Mr Hojsgaard asserts it was, they claim ownership of the streambed and not solely on the basis of customary rights.[90] As regards Mr Hojsgaard's asserted riparian rights based on the stream beingtidal or navigable, the problem he faces is that the evidence in the High Court on thepoint tends to suggest the pre-avulsion stream was neither navigable nor tidal.[91] Undaunted, Mr Thorp submitted as a back-up position that even if the streamwas neither tidal nor navigable, Mr Hojsgaard can still claim rights arising out of aconveyancing presumption that the owner of land on the banks of a non-tidal river hasownership of the river bed to the mid-point of the river.60 The effect of thispresumption is that it is assumed that someone conveying riparian land has no interestin retaining a strip of riverbed when parting with the frontage land.61[92] However, the Supreme Court has held the presumption does not apply to landsubject to Māori customary interests.62 In the present case, those are still to beinvestigated, as are the claims to ownership independent of customary use.As Mr Harris pointed out, there was nothing in the material before the High Courtsuggesting that at the time of the Martin acquisition in 1859, Ngati Korokoro had nointerest in retaining a strip of riverbed. On the contrary, there was evidence it was animportant local Tauranga waka and storage area.[93] For all these reasons, we conclude the Judge did not err in declining todetermine the merits of the underlying survey dispute.60 The presumption is known as ad medium filum acquae or the mid-point presumption.61 Paki v Attorney General [2014] NZSC 118, [2015] 1 NZLR 67at [23], see further [60]–[66].62 At [60]–[72] per Elias CJ, [173] per McGrath J, [223] per William Young J and [318] perGlazebrook J.[94] That conclusion effectively disposes of the ground of appeal that the Judge waswrong to refuse to make any declaration based on the merits of the underlying surveydispute. The declarations sought from this Court differed from those sought in theHigh Court in that Mr Hojsgaard did not seek from us a declaration that the locationand area of the hydro-parcel in the Thomson survey was correct. However, the claimfor declaratory relief even in this Court was directed at securing a hydro-parcel andfor the reasons articulated above must fail.[95] We should add that in addition to arguments about the merits of the competingsurveys, Mr Thorp also submitted it was unreasonable of the Judge to refuse to makea declaration when, at a case management conference before the hearing, anotherHigh Court judge (Heath J) had indicated the Court would exercise its discretion toresolve the matter by a declaration based on the merits. Mr Thorp even went so far asto say this meant it would also be unreasonable of this Court to refuse to grantdeclaratory relief.[96] The argument is untenable. The "indication" from Heath J may have promptedMr Thorp to amend the statement of claim. But the indication was just that, anindication. It was not binding. A trial judge's discretion cannot possibly be fetteredby a Judge at a case management conference making a suggestion for counsel toconsider.[97] We now turn to consider the other ground of appeal — that the High Court waswrong not to quash the Chief Executive's approval of the Brill survey. We do so onthe basis that it is not for this Court but for the Chief Executive to determine on herreconsideration whether the Brill survey complies with the Rules by reference towhether the western boundary of the Wright survey is depicted by a right-lined waterboundary.Was the Judge wrong not to quash the Chief Executive's decision to approve theBrill Survey[98] Mr Thorp submitted it is a cardinal principle of public law that relief shouldrarely be refused where an error of law such as a failure to consider a mandatoryrelevant consideration has been established. He referred us to statements inAir Nelson v Minister of Transport where this Court said there must be extremelystrong reasons to decline to grant a remedy.63 Mr Thorp contended that in this casethere was no reason for Jagose J to decline to quash the approval decision, and strongreasons for quashing it.[99] In response, Mr Bryant – counsel for the Chief Executive – argued that the lawhad moved on since Air Nelson. He submitted courts now take what he described asa "more nuanced" approach and have regard to other factors such as whether the erroridentified in the context of the whole of each decision was minor, whetherthe applicant's fundamental challenge had failed and whether the applicant wouldsuffer substantial prejudice if the impugned decision was allowed to stand.64[100] Mr Bryant said it was possible the error identified by the High Court was minorin the context of the approved decision. The Chief Executive could still conclude,after undertaking the reconsideration ordered by the Judge, that the Brill surveycomplied with the Rules for Cadastral Survey. This was a possibility alluded to bythe Judge.65[101] As to prejudice, Mr Bryant denied the Judge's limited relief had prejudicedMr Hojsgaard. He also disputed claims quashing the decision would have no effecton anyone other than Mr Hojsgaard, because that he said "completely ignores" theinterests of the Māori owners of Omapere B.[102] We accept it is appropriate to take into account the factors identified byMr Bryant. We also accept it is possible the reconsideration may not have anysubstantive consequence for the Chief Executive's determination as tothe Brill survey's ultimate compliance with the Rules for Cadastral Survey. Butequally, it might. After all, the Judge would not have ordered the limitedreconsideration if he was certain it would make no difference.63 Air Nelson v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61].64 Citing Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2017] NZCA 613, [2018] 2NZLR 453; and Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408.65 High Court Judgment, above n 2, at [109].[103] If the Chief Executive were to conclude the Brill survey was non-compliant,that would mean it should not have been approved for integration into the cadastre.However, that would be a pyrrhic victory for Mr Hojsgaard because, as was commonground, the Chief Executive has no power to direct Mr Brill to do anything and nopower to remove a survey from the cadastre once it has been entered. The Judgeappears to have contemplated that, in those circumstances, there could still be ameaningful remedy for Mr Hojsgaard because the matter would then go tothe Surveyor-General for consideration under s 52. The Judge stated that if theconsequence of the Chief Executive's reconsideration was that an error was found inthe Brill survey, "the statutory scheme provides the Surveyor-General may require itscorrection".66[104] However, that assumption overlooks the point that if the Brill survey remainsin the cadastre, it will attract the presumption of correctness for the purposes of a s 52consideration,67 even though it should never have been there in the first place.[105] This to us seems patently wrong and in our view negates any suggestion thatthe Judge's refusal to quash the approval decision will not prejudice Mr Hojsgaard.Unless the approval decision is quashed, Mr Hojsgaard's ability to achieve thesubstantive outcome he seeks is unfairly hampered as the result of a decision found tobe unlawful. In fairness to the Judge, it should be noted the point was not taken in theHigh Court, but raised for the first time before us.[106] We are mindful of the concerns expressed by Mr Bryant that were this Courtto quash the approval decision, that could be seen as undermining the statutoryscheme, in particular s 52 and the certainty of the cadastre. Those wishing to challengeapproved surveys would be encouraged to achieve by judicial review what they mightnot be able to achieve under s 52. Section 52 would be side-lined.66 High Court Judgment, above n 2, at [109].67 The Brill survey would not attract the presumption of correctness for the purposes of thereconsideration of the approval decision directed by the Judge. The Chief Executive would bedeciding whether there was a conflict between the two surveys in relation to the boundary and ifso whether compelling evidence existed to show the Wright survey was in error.[107] The concerns are valid but, in our view, overstated. Apart from anything else,not all errors are amenable to judicial review, including errors that only come to lightbecause of new evidence not available to the Chief Executive. And, of course, thereis always the safeguard of the court's residual discretion. Not every judicial reviewproceeding will result in an order quashing the approval decision. The statutoryscheme must be respected but we are confident Parliament could never have intendedto render the courts powerless in the face of an unjust "Catch 22" situation.[108] The Catch 22 situation in this case is particularly unjust because the erroridentified by the Judge goes to the heart of Mr Hojsgaard's challenge. When it comesto considering prejudice to third parties, it is also relevant that title to Omapere B basedon the Brill survey has not yet issued. We accept that quashing the decision approvingthe Brill Survey will prejudice the Māori owners of Omapere B but only in terms ofdelaying the issue of freehold title. It will not in any way prejudice claims currentlybefore the Waitangi Tribunal including claims relating to ownership of the dried streambed.[109] We are satisfied that in exercising his discretion whether to quash theChief Executive's approval decision, the Judge erred by failing to take into accountthe effect of the presumption of correctness were the decision not quashed. Havingnow considered the issue afresh, we conclude the Chief Executive's decision shouldbe quashed and so order.[110] For completeness, we record that we have considered whetherthe Chief Executive's approval decision was vitiated by other errors, that is, othererrors in addition to the error identified by the Judge. These other alleged errorsprimarily relate to the Chief Executive's lack of consideration of the historic surveysand in particular the 1866 survey. However, the evidence shows the Chief Executivedid have regard to a number of the old plans and deeds including the 1866 survey. Weagree with the Judge that, correctly analysed, the alleged errors are simply a claim thatthe Chief Executive did not interpret the 1866 survey in the way Mr Hojsgaard thinksit should be interpreted. We consider there is nothing in this further argument.Result in appeal CA223/2018[111] The appeal is allowed to the extent that we find the High Court erred indeclining to quash the decision of the first respondent approving the survey of thesecond respondent for integration into the cadastre under s 9 of the Cadastral SurveyAct 2002. That decision is quashed and we direct the first respondent,the Chief Executive, to reconsider the correctness of the Brill survey in light of all theevidence now available to her.[112] In all other respects the decision of the High Court is affirmed.[113] As regards costs on the appeal, there is no reason why costs should not followthe event. The second respondent, Mr Brill, only opposed the ground of appealrelating to the claim for declaratory relief and did not ask to be heard on that part ofthe appeal relating to the judicial review proceedings. He was therefore entirelysuccessful, and we accordingly order the appellant to pay the second respondent costsfor a standard appeal on a Band A basis with usual disbursements.[114] As between the appellant and the first respondent, the appellant was successfuland we accordingly order the first respondent to pay the appellant costs for a standardappeal on a Band A basis with usual disbursements.[115] In both costs awards, we certify for second counsel.[116] We now turn to the costs awards that were made in the High Court and whichMr Hojsgaard also challenges.The appeal in CA520/2018 – costs in the High CourtThe High Court decision[117] In his costs judgment, Jagose J described the result of his substantive decisionas being (a) that Mr Brill was successful in defeating Mr Hojsgaard's primary case forsubstantive declaratory relief, on which the Chief Executive abided and(b) Mr Hojsgaard was successful on "the rump" of his judicial review case against theChief Executive, on which Mr Brill abided.68[118] Turning to Mr Brill's costs claim, the Judge said that the complexity andcontended significance of Mr Hojsgaard's primary case — in particular engaging infactual, scientific and technical disputes about the state of the subject land in periodspredating 1907, including principally by way of concurrent evidence from eachsurveyors and scientists — required counsel with special skill and experience in theHigh Court.69 The Judge also said he was satisfied a comparatively large amount oftime was reasonable for the preparation of evidence and trial preparation.70[119] The Judge did not however accept that Mr Brill was entitled to increasedcosts,71 but ordered that Mr Hojsgaard pay scale costs calculated on a 3B basis togetherwith disbursements of $150,000. The actual disbursements amounted to $210,000 butMr Brill had offered to reduce them by $60,000.72 The Judge certified for secondcounsel,73 and also ordered Mr Hojsgaard to pay costs of $1,115 to Mr Brill on hiscosts application.74[120] As between Mr Hojsgaard and the Chief Executive, the Judge held that theChief Executive should contribute one third of Mr Hosjgaard's scale costs anddisbursements, the costs to be calculated on a 2B basis.75 The Judge was not preparedto certify for second counsel.76Grounds of appeal[121] On appeal, Mr Thorp accepted that an appeal against a costs decision is anappeal against the exercise of a discretion. He identified numerous alleged errors inthe Judge's reasoning and argued he should have awarded both Mr Hojsgaard and68 Costs Judgment, above n 5, at [2]–[3].69 At [8].70 At [8].71 At [4] and [11]–[12].72 At [10].73 At [17].74 At [13] and [22].75 At [21].76 At [17].Mr Brill one third of their scale costs using the same cost category, as well as theirgeneral disbursements and either all of their expert witness fees or just the surveyingcosts.[122] The key errors alleged are:(a) The Judge mischaracterised the outcome of the proceedings.Correctly analysed, the result meant that like Mr Hojsgaard, Mr Brillwas also only partially successful. There was no finding his survey wascorrect. Mr Brill should not therefore have been awarded full costs anddisbursements, but his costs award should have been reduced by onethird as it was for Mr Hojsgaard.(b) Mr Brill could have chosen not to produce the evidence he did.(c) Further, because neither was any more successful than the other on theunderlying surveying dispute (the Judge having declined to make anyfindings), each should receive all of their expert witnesses' fees or onlythe fees of their surveying experts.(d) Contrary to the view taken by the Judge, the expert evidence called byMr Hojsgaard was not disproportionate. It was necessary becauseMr Brill refused to accept that Mr Hojsgaard's surveyors were in anyway correct.(e) Nor was it correct to say as the Judge did that the great bulk ofMr Hojsgaard's disbursements were not relevant to the judicial reviewclaim.(f) The Judge failed to take into account relevant factors such as the refusalof the Chief Executive or the Surveyor-General to resolve the disputethereby preventing Mr Hojsgaard from being able to settle withMr Brill, Mr Brill's substantial contribution to the flaws found in theapproval decision, the role of the Court in steering Mr Hojsgaard toinclude a claim for declaratory relief, and the fact the underlyingdispute had arisen through no fault of Mr Hojsgaard.(g) It was unfair and wrong to apply category three to the costs award infavour of Mr Brill, when the parties had agreed to category two.(h) If category three were to be applied, it should have applied to thejudicial review proceeding as well. Similarly, there was no reason tocertify for second counsel in relation to one proceeding and not theother.(i) It was an error of principle to apply the two thirds rule to disbursements.(j) There was no justification for departing from the usual practice of notawarding costs on costs applications. Alternatively, if Mr Brill was toreceive an award of costs on his application for costs, it would beunreasonable for Mr Hojsgaard to not also receive such an award.[123] We are not persuaded there has been any operative error on the part ofthe Judge.[124] In particular, we do not agree that Messrs Brill and Hojsgaard enjoyedequivalent success. As Mr Harris submitted, Mr Brill's case was that the declarationssought by Mr Hojsgaard should not be made and Mr Brill succeeded in every sensethat matters. In contrast, Mr Hojsgaard advanced numerous arguments againstthe Chief Executive but only succeeded on the single proposition thatthe Chief Executive had failed to take into account one mandatory relevantconsideration.[125] Further, Mr Brill cannot properly be criticised for defending the whole of theclaim that was brought against him, no matter how misguided that claim might havebeen. He was entitled to do that and, in our assessment, and that of the Judge, hisconduct of the case was reasonable. As is apparent from our conclusions in the mainappeal, we share the Judge's view that the declaratory claim was misguided.[126] In our assessment, there is also no basis for disturbing the costs categoryadopted by the Judge. It appears Mr Brill did himself propose category two but thatwas at an early stage and, as our summary of the history of the proceedingdemonstrates, the complexity and scope of the litigation kept changing over time.[127] We are further satisfied the Judge cannot be held to have erred by assigning adifferent costs category to the judicial review claim. We accept that is not usualpractice. It is usual to allocate a costs category to the proceedings as a whole, notindividual claims within it. However as r 14.1 of the High Court Rules makes clear,ultimately all matters relating to costs are at the discretion of the trial Judge and in ourview the approach the Judge took was open to him. The two claims were notequivalent in complexity. The judicial review proceeding was relativelystraightforward, unlike the claim for declaratory relief. It follows we also agree it wasopen to the Judge to make a distinction between the two when certifying for secondcounsel.[128] As for the factors which the Judge is said to have overlooked, we consider thatthey are either not relevant to costs or not substantiated. In particular, we do notconsider there has been any disentitling conduct on the part of either respondent suchas to impact on costs.[129] We are further satisfied that the extensive evidence produced by Mr Hojsgaardwas not reasonably necessary to enable him to pursue and succeed in thejudicial review part of the proceeding.[130] We agree that the so-called "two thirds rule" relates to costs, not disbursementsand therefore the Judge was wrong to refer to that rule when considering the quantumof Mr Thomson's surveying fees. However, under the High Court Rules, the Courtdoes have a discretion to reduce disbursements if they are disproportionate in thecircumstances,77 and essentially that was what the Judge did. His assessment that theexpert expenses were disproportionate was a view that was open to him in thecircumstances and is a view which we share. As for the awarding of costs on the costs77 High Court Rules 2016, r 14.12(3).application, that was something another Judge may not have done but it was plainlywithin the scope of the Judge's discretion to do so.[131] We conclude that although Mr Thorp has taken every possible point, there areno grounds for revisiting the Judge's costs decision.[132] In reaching that conclusion, we have of course taken into account the fact thatMr Hojsgaard has succeeded in this Court against the Chief Executive on an importantissue on which he failed in the High Court. However, while important, we do notconsider that the quashing of the Chief Executive's decision should have costsimplications for the costs awards made in the High Court. The issue did not occupysignificant hearing time in the High Court and Mr Hojsgaard's success in this Court isbecause of an argument not raised in the High Court. The reasons for the costsdecisions made by the Judge remain valid including the finding that the expertevidence was disproportionate. Mr Hojsgaard has succeeded in this Court not becauseof a wealth of technical evidence but because of the presumption of accuracyconfirmed in Otito Reserve. Appellate intervention in the costs decision is notwarranted.Result in appeal CA520/2018[133] The appeal is dismissed.[134] In light of the costs awards made in CA223/2018 and the fact the costs appealoccupied virtually no hearing time, we have decided to make no costs award on thisappeal.Solicitors:Glaister Ennor, Wellington for AppellantCrown Law Office, Wellington for First RespondentGilbert Walker, Auckland for Second Respondent