REMARKABLES PARK LIMITED v QUEENSTOWN AIRPORT CORPORATION LIMITED [2018] NZHC 1959

REMARKABLES PARK LIMITED v QUEENSTOWN AIRPORT CORPORATION LIMITED [2018] NZHC1959 [2 August 2018]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECIV-2017-425-000035[2018] NZHC 1959BETWEEN REMARKABLES PARK LIMITEDAppellantAND QUEENSTOWN AIRPORTCORPORATION LIMITEDRespondentHearing: On the papersCounsel: R J Somerville QC and B Milo for the AppellantM Casey QC and C Somerville-Frost for the RespondentJudgment: 2 August 2018JUDGMENT OF NATION JAS TO COSTS[1] In a judgment of 1 March 2018, the appellant (RPL) was unsuccessful inappealing decisions of the Environment Court. The respondent (QAC) seeks costs.[2] As recorded in a minute of 2 June 2017, the parties agreed the appeal shouldbe categorised as a category 3 proceeding.[3] QAC seeks costs for all steps of the proceedings on a band C basis. It submitsa large amount of time was required for all the steps for which they seek costs. RPLsubmits QAC had taken a blanket approach in asking for a band C classification forall steps and had not met the onus on it to show why more than a normal amount timewas required for each step.[4] In response, QAC submits that more time than normal was directed at eachstep of the proceedings. It refers to the way RPL's notice of appeal had listed 18alleged errors, resulting in 14 "questions of law" and challenged three substantivedecisions dating back to November 2014. It also refers to the concerns it had raisedas to the scope of the appeal, as recorded in Mander J's minute after the first casemanagement conference.[5] In my judgment, I referred to a number of claimed errors or questions of lawas being essentially challenges to factual and evaluative determinations made by theEnvironment Court. I also referred to a number of respects in which RPL was seekingto challenge determinations and decisions that were not amenable to appeal.[6] Before the first case management conference, QAC raised a concern that RPLwas seeking to challenge factual and evaluative findings made by the EnvironmentCourt which were not amenable to appeal. Also, it was raised that there appeared tobe a challenge to issues that had been determined by earlier decisions of theEnvironment Court which had not been the subject of an appeal. As was demonstratedby the judgment ultimately issued, there was merit to QAC's concerns discussed at thefirst case management conference.[7] The errors referred to in the notice of appeal and the claimed questions of lawhad to be considered against all the decisions that had been made by the EnvironmentCourt, as referred to in my judgment. There were six decisions between 25 September2012 and 31 March 2017. The 18 errors and ultimate 13 questions of law referred toin the notice of appeal were wide-ranging. It took me considerable time to narrowthem down to the six areas I dealt with in my judgment.[8] As a consequence, I accept QAC's legal advisers would have needed to spendmore time than normal for nearly all the steps for which QAC seeks costs. It wasunnecessary for QAC, in its submissions on costs (limited, as I directed, to six pages),to identify why that was necessary, given the detailed way in which I had referred tothe earlier decisions of the Environment Court in dealing with the questions I had toconsider with the grounds of appeal framed as they were.[9] The time which QAC would reasonably have taken in dealing with the appealas it was presented would have broadly been consistent with the time that was requiredof the Court to deal with the appeal.[10] I consider an allowance of two days for commencement of response to appealand memorandum for case management conference on a band C basis is reasonable inthe circumstances of this appeal.[11] QAC seeks costs for second counsel in relation to her attendance at the hearingwhich proceeded by way of telephone conference over the application for leave toadduce further evidence and for an adjournment of the appeal. RPL objects to anallowance for second counsel with regard to that hearing on the basis the applicationswere relatively straightforward.[12] I reject that submission. The application had the potential to impactsignificantly on the future course of the proceedings and the way, if at all, the newevidence might have to be dealt with on the hearing of the appeal. The hearing overwhether or not this new evidence was going to be material in a way that justified itsadmission, potentially, was going to require consideration of various factual mattersthat had been dealt with in the earlier decisions of the Environment Court. Given thescope of those decisions and the complexity of the factual matters they dealt with, itwas reasonable for both counsel to be available to deal with the issues that had to bediscussed.[13] RPL submits there should be no allowance for QAC's costs in connection withthe preparation of the case on appeal because it was RPL who had primaryresponsibility for that.[14] I accept the submission for QAC that it was required to review the veryextensive documentation included in the case on appeal to consider whether all thematerial was relevant to the grounds as pleaded. I accept also that the common bundlecould have reasonably been much reduced if the grounds of appeal had been limitedjust to questions of law, as they should have been, and if documents relevant to factualand evaluative determinations of the Environment Court had not been included.[15] With my knowledge of how the appeal proceeded, of the issues that were raisedand the way it had to be addressed, I have been satisfied that more than a normalamount of time would have been required to deal with the particular steps for whichcosts are sought, with one exception. QAC has sought costs for two days with regardto its opposition to applications seeking adjournment and to adduce further evidence,and three days for preparation of written submissions opposing adjournment andadducing further evidence. On a 3B basis, the allowance for those two steps would bea total of 2.1 days. QAC had a detailed knowledge of the earlier decisions. By thetime QAC had to deal with the adjournment/further evidence issues, it would have hada good understanding of the issues being raised on appeal and how it was dealing withthem through its initial consideration of the appeal and through its preparation ofsubmissions for the appeal. Costs for those steps are being awarded on a 3C basis.With the benefit of that work, QAC would have been able to respond on these newissues more economically from a time point of view. I consider the costs for steps 23and 24 should be on just a scale B basis.[16] I am otherwise satisfied that band C is appropriate for all other steps in theproceedings for which QAC seeks costs.[17] QAC has also claimed increased costs on the grounds RPL had not heededMander J's direction in a minute to identify the discrete issues of law which wereamenable to appeal, had pursued the appeal in relation to findings of fact/matters ofevaluation or determinations made in earlier decisions which were not amenable toappeal and had therefore caused QAC to have to commit an unusual amount of timeto the preparation of its submissions. Essentially, QAC submit RPL pursued an appealwithout merit.[18] Although there is justification for the criticisms which QAC makes, theconsequences for QAC and the work required of it in responding to the appeal becauseof the way it was advanced by RPL has been recognised through the band C timeallocation for nearly all steps in the proceedings and the allowance for second counsel.In these circumstances, I am not making an award for increased costs.Conclusion[19] QAC is entitled to costs on a category 3 band C basis for all steps in theproceedings as set out in attachment A to counsel's memorandum of 29 March 2018except for items 23 and 24. For those steps, QAC is entitled to costs on a category 3band B basis. QAC is also entitled to disbursements as approved by the registrar.Solicitors:R J Somerville QC, Barrister, DunedinBrookfields Lawyers, AucklandChapman Tripp, Auckland.