THE FEDERATED MOUNTAIN CLUBS OF NEW ZEALAND INC v GRIFFIN CREEK HYDRO LTD [2023] NZHC 3746
A concession granted as an easement under the Conservation Act is to be interpreted by contractual interpretation principles rather than by the Resource Management Act approach to resource consents; the public interest exception to costs did not apply to the narrow issue, no increased costs were warranted, and costs...
Source-derived case information.
- Citation
- [2023] NZHC 3746
- Parties
- Plaintiff: The Federated Mountain Clubs of New Zealand Inc; First Defendant: Griffin Creek Hydro Ltd; Second Defendant: The Minister of Conservation; Third Defendant: The Department of Conservation
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 18 December 2023
- Procedural Posture
- Declaratory Judgment / Costs Application (post Substantive Judgment)
- Outcome
- Costs awarded against plaintiff in favour of the first defendant and jointly in favour of the second and third defendants; no increased costs awarded; costs assessed on a 2B basis
- Legal Topics
- Costs, Interpretation of Concessions, Easements, Resource Management Act Comparison, Declaratory Relief
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Federated Mountain Clubs of New Zealand Inc
Plaintiff
Griffin Creek Hydro Ltd
First Defendant
The Minister of Conservation
Second Defendant
The Department of Conservation
Third Defendant
Procedural Posture
Declaratory Judgment / Costs Application (post Substantive Judgment)
Legal Issues
- 1 Whether the concession granted under the Conservation Act 1987 should be interpreted like a Resource Management Act resource consent such that application documents limit the authorized water take
- 2 Whether the proceeding concerned a matter of public interest sufficient to displace the general rule that costs follow the event (High Court Rules r14.7(e))
- 3 Whether increased costs should be awarded under High Court Rules r14.6 due to unnecessary or unmeritorious steps, inadmissible evidence, or refusal of a settlement offer
Ratio Decidendi
A concession granted as an easement under the Conservation Act is to be interpreted by contractual interpretation principles rather than by the Resource Management Act approach to resource consents; the public interest exception to costs did not apply to the narrow issue, no increased costs were warranted, and costs were awarded to the defendants on the usual scale.
Court Disposition
Costs awarded against plaintiff in favour of the first defendant and jointly in favour of the second and third defendants; no increased costs awarded; costs assessed on a 2B basis
Orders
- Order: The Federated Mountain Clubs of New Zealand Inc pay Griffin Creek Hydro Ltd costs of $21,510.00 and disbursements of $4,115.32, totalling $25,625.32.
- Order: The Federated Mountain Clubs of New Zealand Inc pay the Minister of Conservation and the Department of Conservation jointly costs of $16,132.50 and disbursements of $940.38, totalling $17,072.88.
Full Case Text
Judgment text and source record
1 paragraphs
THE FEDERATED MOUNTAIN CLUBS OF NEW ZEALAND INC v GRIFFIN CREEK HYDRO LTD [2023]NZHC 3746 [18 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-001251[2023] NZHC 3746UNDER the Declaratory Judgments Act 1908 andPart 18 of the High Court RulesBETWEEN THE FEDERATED MOUNTAIN CLUBSOF NEW ZEALAND INCORPORATEDPlaintiffAND GRIFFIN CREEK HYDRO LIMITEDFirst DefendantTHE MINISTER OF CONSERVATIONSecond DefendantTHE DEPARTMENT OF CONSERVATIONThird DefendantHearing: On the papersCounsel: M Smith for the PlaintiffM Wright for the First DefendantR Elvin and R Fistonich for the Second and Third DefendantsJudgment: 18 December 2023JUDGMENT OF GORDON J[As to costs]This judgment was delivered by me on 18 December 2023 at 3.30 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:Crown Law, WellingtonGilbert Walker, Solicitors, AucklandRout Milner Fitchett, Solicitors, NelsonIntroduction[1] This is a decision on an application for costs.[2] In my judgment of 18 October 2023 (substantive judgment),1 I refused anapplication by the plaintiff, The Federated Mountains Clubs of New Zealand Inc(FMC), for a declaration under the Declaratory Judgments Act 1908 as to theinterpretation of a concession granted by the second defendant, the Minister ofConservation (the Minister), to the first defendant company, Griffin Creek Hydro Ltd(GCHL).[3] In 2011, the Minister, via her delegate, granted a concession under pt 3B of theConservation Act 1987 (the Act) in the form of an easement in gross (Concession) toGCHL. The Concession permits GCHL to construct and operate a small, run-of-river,hydroelectric power scheme2 on conservation land3 in the Griffin Creek valley locatedon the West Coast of the South Island approximately 40 kilometres east of Hokitika.The scheme is not yet in operation. GCHL has constructed an access track but has notyet constructed the hydroelectric plant.[4] FMC sought a declaration that the Concession limits the volume of waterGCHL may extract from Griffin Creek to 1.2 cubic metres per second (cumecs). Asecond declaration was originally sought but was not pursued at the hearing as in theirstatements of defence, the defendants admitted that the Concession regulated theresidual flow in the terms as expressed in the second declaration sought. There was,accordingly, no live dispute on that issue.4[5] The three defendants opposed the declaration.[6] The parties have not been able to agree costs and have filed memoranda.1 The Federated Mountain Clubs of New Zealand Inc v Griffin Creek Hydro Ltd [2023] NZHC 2917[substantive judgment].2 With a "run-of-river" scheme there is no dam.3 Conservation land is land held under the Conservation Act 1987 for conservation purposes.4 Refer to fn 4 in substantive judgment.Summary of parties' positions on costs[7] GCHL seeks costs on a 2B basis in the sum of $20,076.00 (up to and includingthe date of the hearing) plus an increase of 20 per cent applied to all steps up to andincluding the hearing. That is an additional $4,015.20. As well, GCHL seeks costs of$1,434.00 for filing its application for costs. The total costs sought are $25,525.20together with disbursements of $4,115.32. The total amount of costs anddisbursements sought is $29,640.52. The schedule of costs filed with the submissionsfor GCHL is attached to this judgment as Annexure A.[8] The Minister and the third defendant, the Department of Conservation(Department), which is the landholder and the administrator of the Concession, werejointly represented. Together they claim costs on a 2B basis of $16,132.50 anddisbursements of $940.38, totalling $17,072.88. The schedule annexed to thesubmissions of counsel for the Minister and the Department is attached to thisjudgment as Annexure B.[9] FMC's position is that no costs award ought to be made against it as theproceeding concerned a matter of public interest and FMC acted reasonably in theconduct of the proceeding.5 Alternatively, FMC says any costs award should besubstantially reduced. If the Court were to adopt FMC's alternative position, FMCaccepts an award of costs on a 2B basis is appropriate but says adjustments need to bemade to the items in the two schedules for the defendants referred to above. FMCsays there is no basis for increased costs.[10] In response, GCHL says costs should be awarded as sought. The Minister andthe Department similarly say no reduction in costs should be allowed and alternatively,if the Court finds a reduction in costs to be appropriate, any reduction should not bemore than 10 per cent.5 High Court Rules 2016, r 14.7(e).Costs principles[11] Although costs awards in the High Court are discretionary,6 as a generalprinciple, the party who fails in a proceeding should pay costs to the party whosucceeds.7 That general principle may be departed from, including to refuse or reducecosts if the proceeding concerned a matter of public interest, and the party opposingcosts acted reasonably in the conduct of the proceeding.8[12] For the "public interest" exception to apply, the proceeding must concern amatter of genuine public interest, have merit and be of general importance beyond theinterests of the particular unsuccessful litigant.9Public interest[13] As to the first limb of r 14.7(e), Mr Smith, counsel for FMC, submits that theproceeding clearly concerned a matter of public interest. He says the case concernedinfrastructure development in a previously pristine mountain valley. Mr Smithsubmits the protection of the environment is axiomatically in the public interest. Hecites four cases which involved environmental challenges to development projectswhere there were no orders made as to costs and costs were to lie where they fell (inpart in Environmental Defence Society Inc v The New Zealand King Salmon CompanyLtd).10[14] Mr Smith also submits that FMC did not act for personal gain, but as anadvocate for nature. He refers to the affidavit of Neil Silverwood filed in theproceeding in which Mr Silverwood said FMC advocates for recreation broadly andthe environment they recreate in, on behalf of 22,000 members in 100 clubs. Mr Smithsubmits the particular lens through which FMC approaches these issues – recreation –6 Rule 14.1.7 Rule 14.2(1)(a).8 Rule 14.7(e).9 Taylor v the District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October2010 at [9] as cited in New Health New Zealand Inc v South Taranaki District Council [2014]NZHC 993, (2014) 21 PRNZ 766 at [10].10 Save Kapiti Inc v New Zealand Transport Agency [2013] NZHC 3314; West Coast ENT Inc vBuller Coal Ltd [2013] NZSC 133; Environmental Defence Society Incorporated v The NewZealand King Salmon Company Ltd [2014] NZSC 167; and Lawyers for Climate Action NZ Inc vThe Climate Change Commission [2023] NZHC 527.is specifically recognised in the Act.11 Mr Smith submits that recreation is one of theprimary lenses through which New Zealanders interact with nature.[15] Mr Smith also submits the legal issue raised by the case was a novel one.[16] I do not accept that the proceeding concerned a matter of public interest. Theissue in the case was narrow. The application did not challenge the authorisation ofthe hydroelectric power scheme. The issue was simply: what is the correct approachfor interpreting concessions under the Act. In more specific terms, the Court neededto decide whether the volume of water take referred to by GCHL in its applicationdocuments, but not imposed as a condition in the Concession as granted, neverthelessapplied as a limit on the amount of water that could be taken.[17] FMC argued that the Court should follow the approach that applies to theinterpretation of a resource consent under the Resource Management Act 1991 wheninterpreting a concession. Following that approach would have meant the referenceto the water take in the application documents operated as a limit on the water takeunder the Concession. I did not accept that argument and held that the Concession,being an easement, was to be interpreted using the principles of contractualinterpretation. I considered that approach was supported by differences between theAct and the Resource Management Act.[18] As noted above, Mr Smith makes the submission that the case concernedinfrastructure development in a previously pristine mountain valley and the protectionof the environment is axiomatically in the public interest. But that was not what thecase was about. As already mentioned, the proceeding did not seek to overturn theauthorisation of the scheme and accordingly, could not achieve the outcome Mr Smithrefers to. The Court simply had to decide how the Concession document should beinterpreted and whether using Resource Management Act interpretation principles wasthe correct approach.11 Referring, for example, to the definition of "conservation" in s 2 and in the exemption forrecreational activities from the concession regime under s 17O.[19] I acknowledge that in a general sense FMC may seek to further public interest.However, that general interest was not a focus in this proceeding.[20] In his affidavit, Mr Silverwood refers to the number of members on whosebehalf they advocate. However, it is apparent that it would be only a small and selectgroup of very experienced canyoners who would undertake the experience in GriffinCreek. In a letter annexed to Mr Silverwood's affidavit written by the president of theNZ Canyoning Association, he refers to Griffin Creek as being a place very high onthe list for advanced canyoners to visit. He refers to "technical challenges" and says"[t]here are only a few canyons so far explored at this level of difficulty". This doesnot suggest a broad interest in Griffin Creek.[21] There was a news article published following the hearing which states:"Informing its members of the court action at the weekend, Federated Mountain Clubssaid the case could have important implications for the place of recreation ininterpreting such concessions." That misstates what the case was about. The presidentof FMC is quoted as saying the Act requires that recreation be fostered. While thatmay be right, the proceeding before the Court did not involve a consideration of therole of recreation in decision-making under the Act.[22] Mr Smith submits that the case raised the novel question of whether the scopeof a concession activity is confined by the terms of an application, as is a resourceconsent under the Resource Management Act. He says this is an important questionof law.12[23] A matter that arises out of a private interest does not become a matter of publicinterest simply because the public benefits generally from its determination, such assettling the correct interpretation of a piece of legislation.13 Further, it arguably mightbe said that the narrow question the Court was required to decide was specific to theparticular Concession.12 Which he says was acknowledged by GCHL in its recent fast track memorandum in the Court ofAppeal (FMC has appealed the substantive judgment).13 Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 (HC) at [18] as cited inBelgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2018] NZHC 926 at [16].[24] Even accepting Mr Smith's submission that the decision is helpful beyond thiscase, the degree of helpfulness and the difficulty of the issue raised are not of the orderas was found in the cases FMC relies on. For example, in Environmental DefenceSociety Inc v The New Zealand King Salmon Company Ltd, the Judges in the majorityin the Supreme Court said:14[44] We accept that there is force in the points made by SOS. The submissionsit made in the EDS appeal were of assistance to the Court and are reflected inthe Court's analysis. The SOS appeal in relation to the threeremaining salmon farms raised, as King Salmon acknowledged, issues of"major resource management significance". The Court's analysis will have asignificant impact on decision-making under the RMA in the future. ...[25] The minority Judges said:[26] Although the appeal taken to this Court by SOS ultimately failed, thepoints raised by it were undoubtedly matters of significant public importance.The testing against the Act of the system of adaptive management of impactson water quality and arguments advanced that a precautionary approach wasrequired in cases of scientific uncertainty were important in themselves andthe litigation provided principles of significance for future cases, even if in theend the Court concluded that they were not determinative of the present appealon the facts.[28] The case, like West Coast ENT, was of real difficulty (as thedivision of opinion in this Court indicates) and the principles of interpretationapplied had significance well beyond it. [26] Similarly, in West Coast ENT Inc v Buller Coal Ltd, the Supreme Court said:15 As well, the underlying issue of law was difficult and its resolution had asignificance which went well beyond the present case.[27] The position in this case can also be contrasted with the position in Lawyersfor Climate Action NZ Inc v The Climate Change Commission where the Court said:16[7] In this case, I consider it is appropriate in the circumstances to depart fromthe general principle. Pursuant to the significant amendments to the Act thatestablished the Commission, the Commission's role is to provide periodicadvice to the Minister and to review the Government's progress towardsemissions reduction and adaptation goals. LCANZ's proceeding concerned14 Environmental Defence Society Incorporated v The New Zealand King Salmon Company Ltd,above n 10.15 West Coast ENT Inc v Buller Coal Ltd, above n 10, at [4].16 Lawyers for Climate Action NZ Inc v The Climate Change Commission, above n 10.the first occasion that the Commission advised the Minister pursuant to thoseamendments. It did so as a not-for-profit group formed for the purposes ofpromoting more ambitious climate change action in the face of the climatechange emergency. It was not seeking a pecuniary or other direct benefit foritself. It was a group qualified and skilled to consider the legal issues on whichthe grounds of review were based. It advanced high-level principles andinterpretation issues of general application rather than minor or narrow issuesof limited significance. [8] A similar point applies in the context of the Commission's advice thathas potentially such important impact on our future society in that, without theresources of a group such as LCANZ, no one person might be in a position toso thoroughly test whether the Commission's advice, on the first occasionrequired of it, was in accordance with the task the legislature set for it.[9] As noted earlier, although it did not obtain relief, it succeeded on somepoints.[28] This proceeding can be distinguished from the cases relied upon by FMC.FMC did not succeed on any points, nor were the issues finely balanced. The subjectmatter is also not a matter of general importance or significance going far beyond thepresent case. Here, the interests were of those of a select group of canyoners. Thefact that the Court has determined how a concession is to be interpreted does notelevate the interests of a niche group into a matter of public interest.[29] I do not consider the general principle that costs follow the event has beendisplaced.Increased costs[30] GCHL seeks increased costs. It says first, the application was entirelyunmeritorious, being premised on the law of resource consents rather than the law ofeasements. GCHL also says the arguments it raised were not responded to in anymeaningful way by FMC.[31] Second, GCHL says the application relied on evidence in the affidavit ofMr Silverwood, which the Court ruled inadmissible. Ms Gepp, counsel for GCHL,says that necessitated the time and expense of filing a notice under r 9.11 of the HighCourt Rules and there was a need to address admissibility issues in legal submissions.Further, Ms Gepp says, as acknowledged in oral submissions by Mr Smith, the partsof Mr Silverwood's affidavits ruled inadmissible were not relevant to the legal issuebefore the Court.[32] Next, Ms Gepp submits that the assertions in Mr Silverwood's evidence as tothe effects of the scheme on Griffin Creek required GCHL to file evidence from twoexpert witnesses in response.[33] Lastly, Ms Gepp says FMC failed without reasonable justification to accept anoffer of settlement prior to trial.[34] Rule 14.6 of the High Court Rules sets out the circumstances in which a partymay be awarded increased costs. Rule 14.6(3)(b) provides in relevant part:14.6 Increased costs and indemnity costs(3) The court may order a party to pay increased costs if—(b) the party opposing costs has contributed unnecessarily to thetime or expense of the proceeding or step in it by—(ii) taking or pursuing an unnecessary step or anargument that lacks merit; or(v) failing, without reasonable justification, to accept anoffer of settlement whether in the form of an offerunder rule 14.10 or some other offer to settle ordispose of the proceeding; or[35] As regards settlement offers prior to trial (known as Calderbank offers),rr 14.10 and 14.11 respectively provide, in relevant part:14.10 Written offers without prejudice except as to costs(1) A party to a proceeding may make a written offer to another party atany time that—(a) is expressly stated to be without prejudice except as to costs;and(b) relates to an issue in the proceeding.14.11 Effect on costs(1) The effect (if any) that the making of an offer under rule 14.10 has onthe question of costs is at the discretion of the court.(2) Subclauses (3) and (4)—(a) are subject to subclause (1); and(b) do not limit rule 14.6 or 14.7; and(c) apply to an offer made under rule 14.10 by a party to aproceeding (party A) to another party to it (party B).(3) Party A is entitled to costs on the steps taken in the proceeding afterthe offer is made, if party A—(b) makes an offer that would have been more beneficial to partyB than the judgment obtained by party B against party A.[36] The effect of a Calderbank offer on an award of costs is fully discretionary.17Such an offer does not stand alone. All the surrounding circumstances must beconsidered.[37] All of the grounds in r 14.6(3)(b) are predicated on actions by the losing partywhich increased the costs of a proceeding once issued. Leaving aside for the momentthe affidavits of Mr Silverwood, I accept that the case for FMC was progressedresponsibly. However, as against that, taking or pursuing an entire claim that lacksmerit can warrant increased costs.[38] Although FMC failed, it did raise a novel question of law. While Ms Geppsubmits, and I agree, that FMC failed to apply the law relating to the interpretation ofeasements (the Concession being an easement), the Court reached its decision not only17 McDonald v FAI (NZ) General Insurance Co Ltd (2002) 16 PRNZ 298 (HC) at [53] citing HealthWaikato Ltd v van der Sluis (1997) 10 PRNZ 514 (CA).by applying the law relating to easements but also by finding support in the differencesbetween the regimes under the Act and the Resource Management Act. There was noexplicit guidance from case law on such an analysis, as noted in the substantivejudgment.18[39] As far as Mr Silverwood's evidence is concerned, any cost incurred by GCHLas a consequence of that evidence can be met by allowing in the scale costs award thecost of GCHL's r 9.11 notice (as claimed by GCHL in its schedule), and by allowingthe fees for GCHL's two expert witnesses as disbursements (also as claimed in GCHL'sschedule).[40] As regards the settlement proposal, counsel for GCHL sent a letter to thesolicitors for FMC dated 16 December 2022 on a "without prejudice save as to costs"basis. The letter states in relevant part:In the interests of resolving this litigation promptly and avoiding further costs,GCHL is prepared to offer a compromise. In exchange for FMC discontinuingthe proceeding and not taking further action to challenge the take volumeavailable under the concession, GCHL is prepared to offer to cease take up to"X" pre-arranged days per year, with the number of days and hours per day tobe agreed between GCHL and FMC. On those days, canyoners would be ableto use Griffin Creek for canyoning with the water at its natural full flow. Thiswould be a significant betterment for FMC compared with the best outcomethat could be achieved if FMC were successful in its declaration application.[41] The issue of the reasonableness of rejecting an offer is to be assessed at thetime the offer was made, not in light of the result.19[42] As any effect on costs on a r 14.10 offer is at the Court's discretion, it does notafford automatic protection from costs in the event of a lower recovery. An offer morefavourable than the ultimate recovery must be considered.20 However, it is not thesole consideration.[43] I do not consider it was unreasonable for FMC not to accept the settlementoffer. First, FMC sought a year-round result in the proceeding. Further, as Mr Smith18 At [106].19 New Zealand Sports Merchandising Ltd v DSL Logistics Ltd HC Auckland CIV-2009-404-5548,19 August 2010 at [35]–[36].20 Warren Metals Ltd v Grant [2015] NZHC 2462 at [42].points out, the proposal was uncertain with the key term, the number of days and hoursof cessation, still to be negotiated. Leaving the fundamental part of the proposaluncertain means it is difficult to evaluate whether the compromise offered by GCHLwould be, as Ms Gepp puts it, a "significant betterment" for FMC compared with thebest outcome that could be achieved if FMC were successful in its application.[44] Taken overall, I do not consider any of the matters raised by GCHL either ontheir own, or in combination, warrant an award of increased costs.Quantification of GCHL's 2B costs[45] Mr Smith submits that five adjustments need to be made to GCHL's costs claimin its schedule. The first of those also applies to the claim by the Minister and theDepartment.[46] Mr Smith submits that no allowance should be made for item 2,commencement of defence. FMC's proceeding as filed raised two issues with adeclaration sought on each of those two issues. Mr Smith says this was based on theposition of GCHL as set out in its solicitor's letter of 20 November 2018. Mr Smithsays that following the filing of proceedings, GCHL changed its position on the secondissue (residual water flow).21 Mr Smith submits that costs on commencement of theproceeding ought to lie where they fall, reflecting each party's success on one of thetwo matters initially in issue.[47] I accept Ms Gepp's submission that FMC's present position is inconsistent withthe parties' agreement as to how this issue would be dealt with in terms of costs. In aletter dated 8 December 2022, the solicitors for FMC wrote to counsel for GCHL inthe following terms:FMC is pleased that GCHL, the Minister and the Department have admittedthe Concession regulates residual flow in the manner described in thestatement of claim. FMC is accordingly prepared to withdraw its applicationfor the first declaration with costs on that aspect of the claim to lie where theyfall.21 See fn 4 in substantive judgment.[48] Having regard to the above correspondence, which refers to "that aspect of theclaim", I consider it is proper to provide an allowance for item 2 (commencement ofthe defence) as it relates to the other declaration, for both GCHL and the Minister andthe Department. I will allow this item as claimed.[49] As a second adjustment, FMC says there should be no allowance for the firstcase management conference memorandum dated 19 January 2023. Mr Smith submitsthis was prepared by FMC.[50] However, it is apparent from the memorandum on the Court file that it is a jointmemorandum. Although the memorandum appears to have been filed by the solicitorsfor FMC, by its nature, a joint memorandum requires input from all counsel. I willallow this item claimed by GCHL.[51] Third, Mr Smith submits the hearing time allowance should be 0.75 daysreflecting, what Mr Smith submits was the actual time occupied by the hearing ratherthan the one day claimed by GCHL.[52] I have examined the Court records. They indicate the hearing ended at4.15 pm. In other words, the hearing continued after the afternoon adjournment andtherefore went beyond the third quarter day into the fourth quarter. I will allow theone day allowance as claimed by GCHL.[53] The fourth adjustment that FMC says should be made is that there should beno allowance for GCHL's expert witness disbursements. As Mr Smith notes, underr 14.12, disbursements may be recovered where they are reasonably necessary for theconduct of the proceeding. Mr Smith submits GCHL's expert fees were not necessaryin circumstances where the evidence was relevant only to the potential implication ofa term (in other words a limit in the Concession on the volume of water GCHL mightextract from Griffin Creek) and FMC did not argue for the implication of a term.[54] I do not accept Mr Smith's submission. It was reasonably necessary for GCHLto file evidence from the two experts for two reasons. First, the evidence was inresponse to Mr Silverwood's evidence. Although in the end the Court ruled that partsof Mr Silverwood's evidence purporting to give expert opinion were inadmissible,given that argument was not heard on that issue until trial, it was reasonable for GCHLto file expert evidence in response to Mr Silverwood's purported expert opinion.[55] Second, the evidence was relevant for the Court's consideration of whether aterm limiting water take should be read into the Concession as an implied (contractual)term. Given GCHL's position that the Concession should be interpreted under the lawof contract, GCHL needed to provide the Court with an evidential basis in order tosubmit that a term limiting water take should not be an implied term. The evidencewas "reasonably necessary" for that purpose. I will allow the claim by GCHL forexpert witness fees as disbursements.[56] Finally, Mr Smith submits there should be no allowance for GCHL's costsapplication.[57] It is well established that costs may be awarded in respect of an application forcosts.22 An application for costs is to be treated no differently for costs purposes froman ordinary interlocutory application. Costs may be awarded according to scale or onan increased or indemnity basis as appropriate.23 I will allow the claim in accordancewith the scale.Orders[58] I make an order for costs against The Federated Mountain Clubs of NewZealand Inc (FMC) in favour of Griffin Creek Hydro Ltd in the sum of $21,510.00plus disbursements of $4,115.32 together totalling $25,625.32.[59] I make a further order for costs against FMC in favour of the Minister ofConservation and the Department of Conservation jointly in the sum of $16,132.50plus disbursements of $940.38 together totalling $17,072.88._____________________________Gordon J22 Body Corporate Administration Ltd v Mehta (No 4) [2013] NZHC 213 at [85] citing for example,Auckland Regional Council v Arrigato Investments Ltd (2002) 16 PRNZ 217 (HC).23 Body Corporate Administration Ltd v Mehta (No 4), above n 21, at [85].Annexure ASCHEDULE OF COSTSSchedule 3 HCR timeallocationsAllocated day or partday (B)Value based on dailyrecovery rate of $2,390(for category 2proceedings)2: Commencement of defence bydefendant2 $4,780.0010: Preparation for first casemanagement conference(including discussion aboutdiscovery)0.4 $956.0011: Filing memorandum for first orsubsequent case managementconference or mentions hearing0.4 $956.0030: Preparation of affidavits, list ofissues or authorities; andagreeing common bundle.2 $4,780.0032 Preparation for hearing 2 $4,780.0034 Appearance at hearing forsole or principal counsel1 $2,390.0036 Other steps in proceeding notspecifically mentioned [Notice inaccordance with Rule 9.11regarding admissibility of evidence]0.6 [estimated to be thesame as time allocation forfiling an interlocutoryapplication]$1,434.00Sub-total $20,076.0020% of sub-total $4,015.2022: Filing interlocutoryapplication [application for costs]0.6 $1,434.00Total - costs $25,525.20DisbursementsCourt filing fee statement ofdefence$110.00Affidavit of Mary Ann Mitchell $1,653.13Affidavit of Monique Harvey $1,840.00Printing and binding of pleadingsand evidence$438.55Delivery bundles from printers(uber)$21.53Printing handup documents forcourt$24.15Taxi to Court (Uber) $10.86Taxi after Court $17.10Total $29,640.52Annexure B