THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITY COUNCIL [2019] NZHC 2162

THE FRIENDS OF ONEKAWA AQUATIC CENTRE SOCIETY INCORPORATED v NAPIER CITYCOUNCIL [2019] NZHC 2162 [30 August 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2019-441-26[2019] NZHC 2162BETWEEN THE FRIENDS OF ONEKAWA AQUATICCENTRE SOCIETY INCORPORATEDApplicantAND NAPIER CITY COUNCILRespondentCounsel: M J E Williams for ApplicantD J S Laing and O L Rego for RespondentJudgment:On the papers30 August 2019JUDGMENT OF GRICE J(Costs)[1] On 30 July 2019 I made interim orders restraining the Council from takingcertain steps until the hearing of the substantive application. That hearing is scheduledfor 30 September.1[2] The applicant has applied for costs on the basis it was successful in obtainingthe interim orders.[3] The respondent opposes costs saying that it ultimately consented to the formof the interim order and had attempted to settle an interim position with the applicantbefore the commencement of the two-day hearing.1 The Friends of Onekawa Aquatic Centre Society Incorporated v Napier City Council [2019]NZHC 1977 [30 July 2019].[4] The respondent Council says that the applicant instead had sought an orderrestraining the Council from taking any further action with respect to the constructionof the Napier Aquatic Centre prior to determination of the substantive hearing. TheCouncil had to oppose this order as it needed to continue with the tender process up tothe date of the substantive hearing as well as carrying on with the resource consentingprocess and preloading the site.[5] The usual position is that costs on an interlocutory application must be fixedwhen the application is determined and they become payable then unless there arespecial reasons to the contrary.2 Costs usually follow the event.3[6] The Council says the form of the interim order allows it to carry out those stepson the terms of the interim order agreed upon. To support that it attaches "withoutprejudice correspondence". The applicant opposes the production of thatcorrespondence on the basis it was not marked without prejudice "except as to costs".[7] In the event it is not necessary for me to consider whether that correspondenceshould be considered. It would be difficult without the full context of the discussionsbetween counsel and relying only on letters annexed to counsel's memoranda toascertain the exact negotiation positions of each of the parties in any event.Nevertheless, it is clear that the Council had indicated a willingness to negotiate. Thatwas apparent at the hearing. Ultimately the position reached was in terms whichallowed the Council to do various works it needed to do and the times were not aswide as the original application had sought. Nevertheless, the applicant was successfulto an extent. However, whether it would have obtained the interim orders it soughthad the terms not been agreed and the Court was required to determine the application,is not certain.[8] While the applicant was in part successful the outcome was in essence anegotiated settlement. Taking into account the circumstances of this case I consider areasonable discount should be applied to any order for costs in favour of the applicant,to recognise this and the background.2 High Court Rules 2016, r 14.8.3 High Court Rules 2016, r 14.2.[9] I note that no issue has been taken with the quantification of the costs claimwhich was attached as a schedule to the application for costs.4 Accordingly, I awardcosts in those terms to the applicant with a discount to those costs of 30 per cent._________________Grice JSolicitors:Langley Twigg, Napier for ApplicantSimpson Grierson, Wellington for Respondent4 This appears to be calculated on a 2B basis.