SOUTHERN CROSS HEALTHCARE LIMITED v EDEN EPSOM RESIDENTIAL PROTECTION SOCIETY INCORPORATED [2023] NZHC 1560

SOUTHERN CROSS HEALTHCARE LIMITED v EDEN EPSOM RESIDENTIAL PROTECTION SOCIETYINCORPORATED [2023] NZHC 1560 [21 June 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2022-404-725[2023] NZHC 1560UNDER the Resource Management Act 1991IN THE MATTER OF An appeal under s 299 of the ResourceManagement Act 1991BETWEEN SOUTHERN CROSS HEALTHCARELIMITEDAppellantAND EDEN EPSOM RESIDENTIAL PROTECTIONSOCIETY INCORPORATEDFirst RespondentAUCKLAND COUNCILSecond RespondentKĀINGA ORA – HOMES ANDCOMMUNITIESSection 301 PartyTŪPUNA MAUNGA O TĀMAKIMAKAURAU AUTHORITYSection 301 PartyOn the papersCounsel: B Tree for the appellantM Savage for the first respondentD Hartley and W Randal for the second respondentJudgment: 21 June 2023COSTS JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 21 June 2023 at 4.30 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy Registrar[1] my judgment dated 27 April 2023, I allowed the appeal of Southern CrossHealthcare Ltd (Southern Cross) and held it was entitled to costs. The parties havebeen unable to agree costs.[2] Southern Cross seeks costs against the first and second respondents but notagainst the s 301 parties. Southern Cross calculates costs on a 2B basis as $19,956.50and claims disbursements of $3,660. It therefore seeks a total of $23,616.50. Therespondents agree with the 2B basis and with Southern Cross's calculation, but submita reduction in costs is warranted under r 14.7 of the High Court Rules 2016.[3] The respondents submit the proceeding concerned a matter of public interestand they acted reasonably, so that r 14.7(e) is engaged. For a proceeding to concerna matter of public interest, the proceeding must concern a matter of genuine publicinterest, have merit and be of general importance beyond the interests of the particularlitigants.1 A proceeding arising out of a matter of private interest does not becomea proceeding concerning a matter of public interest merely because the public benefitsin some way from the determination of the proceeding (such as by settling the meaningof legislation or some other instrument).2[4] Here, the appeal was concerned with a private plan change under whichSouthern Cross sought to rezone four properties it owns in Epsom. This essentiallyaffected Southern Cross's private interest in those properties. The private interestsof the members of the first respondent in their own properties was also affected. Butthe proceeding did not concern a matter of public interest.[5] The respondents also submit that costs should be reduced under r 14.7(d)because, although Southern Cross succeeded overall, it failed in relation to issues thatsignificantly increased the respondents' costs. Southern Cross did fail on five of thenine issues that it raised, and it largely failed on a sixth issue. The three issueson which Southern Cross enjoyed complete success were the most important issuesraised on the appeal and received the most attention in written and oral submissions.1 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010at [9].2 Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC) at [18]; Belgiorno-Nettisv Auckland Council [2018] NZHC 926 at [16].Nonetheless, I consider that its pursuit of the issues on which it failed would havecaused an increase in the respondents' costs that crossed the "significance" thresholdin r 14.7(e).[6] The first respondent also submits that Southern Cross pursued arguments thatlacked merit, engaging r 14.7(f)(ii). I do not accept that submission, which (as is oftenthe case in costs disputes) treats failure as the equivalent of a lack of merit.[7] Having found that r 14.7(d) is engaged, I have a discretion to reduce costs.I will exercise that discretion here. Southern Cross could and should have pursueda more focussed appeal. That said, I consider that the appropriate reduction is no morethan 20 per cent of the costs that would otherwise have been awarded. That reflectsmy assessment of the additional costs the respondents incurred from having to dealwith the issues on which Southern Cross failed. There is no basis for applying thatreduction to the disbursements that are otherwise to be awarded.[8] Accordingly, I award Southern Cross costs of $15,965.20 and disbursementsof $3,660, a total of $19,625.20, against the first and second respondents.______________________Campbell J