POUTAMA KAITIAKI CHARITABLE TRUST v HERITAGE NEW ZEALAND POUHERE TAONGA [COSTS] [2022] NZHC 3509

POUTAMA KAITIAKI CHARITABLE TRUST v HERITAGE NEW ZEALAND POUHERE TAONGA[COSTS] [2022] NZHC 3509 [19 December 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2021-443-61[2022] NZHC 3509UNDER the Heritage New Zealand Pouhere TaongaAct 2014IN THE MATTER OF an appeal under s 299 of the ResourceManagement Act 1991 against a decision ofthe Environment Court upholding the grantof an archaeological authority to First GasLimited for the removal of a section ofpipeline at Clifton Road, TongapōrutuBETWEEN POUTAMA KAITIAKI CHARITABLETRUSTAppellantAND HERITAGE NEW ZEALANDPOUHERE TAONGARespondentFIRST GAS LIMITEDSection 301 of Resource Management ActpartyOn the papers:Counsel: M Gibbs advocate (by leave) for AppellantV N Morrison-Shaw for RespondentB J Matheson for First Gas LimitedJudgment: 19 December 2022JUDGMENT OF CHURCHMAN J[Costs][1] On 19 October 2022, I dismissed an appeal by Poutama Kaitiaki CharitableTrust (Poutama) against a decision of the Environment Court.1[2] In that decision, I directed that the respondent, (Heritage NZ), and s 301 party(First Gas) file submissions on costs within 14 days.2 Poutama were to filesubmissions in reply within a further 14 days. Heritage NZ and First Gas filedsubmissions on 2 November 2022. Heritage NZ seeks costs of $18,153.80 includingdisbursements. First Gas seeks costs of $12,308.50. Poutama did not file submissionsin reply.[3] In a minute of 24 November 2022, I noted that Poutama had not filedsubmissions on costs, and directed that they file submissions within a further fiveworking days, or I would determine costs in their absence. Poutama have not filedcosts submissions. Accordingly, I now deal with the issue of costs.The applicationsHeritage NZ[4] Ms Morrison-Shaw submits that this proceeding is one which satisfies thecriteria for an award of increased and/or indemnity costs, on the basis that the appealwas "wholly misconceived".3 She says that the approach taken by Poutama increasedthe cost of defending the appeal, by raising matters that went beyond the scope of anappeal on a question of law. She says that Heritage NZ made two settlement offers toPoutama, on 25 July 2022, and 21 October 2022. She says:12. Heritage NZ made two settlement offers to Poutama:(a) the first on 25 July 2022 where Heritage NZ offered (on awithout prejudice save as to costs basis) to forego an existingEnvironment Court cost award and not seek further costsagainst Poutama (including in this Court) if Poutamawithdrew its appeal in this Court and a separate appeal in theEnvironment Court which sought to relitigate Poutama'sstatus, and agreed not to relodge further appeals on that issue;and1 Poutama Kaitiaki Charitable Trust v Heritage New Zealand Pouhere Taonga [2022] NZHC 2713.2 At [47].3 At [29].(b) the second on 21 October 2022 where Heritage NZ againoffered (this time on an open basis) to forego seeking costs inthis Court and in the Environment Court if the EnvironmentCourt appeal raising the same issue was withdrawn.[5] Ms Morrison-Shaw submits that Heritage NZ acted reasonably in its conductof the proceedings and took steps to assist Poutama, which was represented by laylitigants. She seeks 50 per cent of Heritage NZ's actual costs. She says also that thesum of security for costs that Poutama was required to pay ($4,780), should be paidout to Heritage NZ and First Gas in equal proportion, in partial satisfaction of any costawards.First Gas[6] First Gas seeks costs of $12,308.50. Mr Matheson submits that costs shouldbe awarded as:(a) the appeal was unsuccessful;(b) the appeal raised a number of grounds which were ultimately irrelevant;but included potentially complex questions of law/fact, including thedefinition of tangata whenua and the determination of mana whenua;(c) it was appropriate for First Gas to participate as the archaeologicalauthority in issue was granted to it; and(d) the submissions on behalf of First Gas focused on specific pointsrelevant to it, and did not duplicate the submissions on behalf ofHeritage NZ.[7] Mr Matheson agrees with Ms Morrison-Shaw that the sum of security for costspaid by Poutama should be equally distributed to Heritage NZ and First Gas.Discussion[8] While I have not had the benefit of costs submissions by Poutama, I accept thesubmissions of both Heritage NZ and First Gas. It is appropriate that costs be awardedto them in this proceeding.[9] I am also satisfied that an award of increased costs to Heritage NZ isappropriate in the circumstances, but only on the basis that the appeal itself lackedmerit, and went far beyond the limited matters that may be addressed in an appeal ona question of law. Increased costs may be awarded where there has been a failure bythe party paying costs to act reasonably.4[10] Rule 14.6(3)(b)(ii) of the High Court Rules 2016 provides that increased costsmay be awarded where the party opposing costs has contributed unnecessarily to thetime or expense of the proceeding by taking or pursuing an unnecessary step or anargument that lacks merit. On that basis alone, I am satisfied that an award ofincreased costs is appropriate, given the way in which Poutama conducted the appeal,and the fact that it sought to raise a significant number of factual matters. Some ofthose factual matters had already been the subject of judgments by this Court and theEnvironment Court and are unable to be inquired into in an appeal on a question oflaw.[11] I note that Ms Morrison-Shaw has calculated the costs award sought byHeritage NZ on an 'actual costs' basis, which is typically used where a party seeksindemnity costs, rather than increased costs. However, I note that she also provided aschedule of costs calculated on a 2B scale costs basis, which totals $12,308.50. The$18,153.80 sought by Heritage NZ can also be described as their scale costs increasedby approximately 50 per cent. As such, I am of the view that the way in whichMs Morrison-Shaw has calculated the costs sought by Heritage NZ is appropriate andwithin range, notwithstanding its calculation by reference to actual costs.4 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400.[12] For clarity, I consider that the settlement offers proposed by Heritage NZ donot of themselves justify an award of increased costs, because those offers appear tohave been contingent on the discontinuance of litigation other than this proceeding.Result[13] I award costs to Heritage NZ in the sum of $18,153.80. I award costs to FirstGas in the sum of $12,308.50. The sum that Poutama paid as security for costs is tobe distributed equally to Heritage NZ and First Gas, in partial satisfaction of their costsawards. Accordingly, $2,390 may be deducted from each of the costs awards, leaving$15,763.80 to Heritage NZ, and $9,918.50 to First Gas.Churchman JSolicitors:Atkins Holm Majurey, Auckland for RespondentGovett Quilliam, New Plymouth for FGL, a s 301 Resource Management Act partycc: M GibbsV N Morrison-ShawB J Matheson