THE FRIENDS OF PAKIRI BEACH V MCCALLUM BROS LTD & ORS CA CA116/07

THE FRIENDS OF PAKIRI BEACH V MCCALLUM BROS LTD & ORS CA CA116/07 16 April 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA116/07 [2008] NZCA 87BETWEEN THE FRIENDS OF PAKIRI BEACH Appellant AND MCALLUM BROS LIMITED First Respondent AND SEA-TOW LIMITED Second RespondentCA27/2008AND BETWEEN THE FRIENDS OF PAKIRI BEACH Appellant AND SEA-TOW LIMITED AND MCCALLUM BROS LIMITED First Respondents AND AUCKLAND REGIONAL COUNCIL Second Respondent Hearing: 13 March 2008 Court: Chambers, John Hansen and Heath JJ Counsel: N R W Davidson QC and J A Carnie for The Friends of Pakiri Beach J K MacRae and A F Buchanan for McCallum Bros Limited and Sea- Tow Limited Judgment: 16 April 2008 at 4 pmJUDGMENT OF THE COURTCA116/07 A The appeal is dismissed, neither leave nor special leave to appeal having yet been obtained. B The appellant must pay to the respondents (jointly) costs of $3,000, plus usual disbursements. CA27/2008 C The appeal is dismissed. D The first respondents' application to strike out the appeal is dismissed. E No order for costs on this appeal. REASONS OF THE COURT(Given by Chambers J)A procedural muddle[1] On 30 May 2006, the Environment Court granted to McCallum Bros Limited and Sea-Tow Limited resource consents for the extraction of sand from near-shore areas of the Mangawhai-Pakiri embayment in the northern part of the Hauraki Gulf. Those applications for resource consents had been strongly opposed by, among others, The Friends of Pakiri Beach, an unincorporated society of residents and landowners at Pakiri Beach. [2] The Friends were dissatisfied with the Environment Court's decision. They lodged an appeal in the High Court under s 299 of the Resource Management Act 1991. They sought the quashing of the resource consents. The dredgers, as we shall call McCallum Bros Limited and Sea-Tow Limited, applied to strike out that appeal on the ground that a number of what were said to be points of law in the notice ofappeal were not points of law at all. Section 299 permits appeals only on points of law. [3] The strike-out application came before Winkelmann J. In a reserved decision, she struck out a number of grounds of appeal on the basis that they were not points of law: The Friends of Pakiri Beach v Auckland Regional Council HC AK CIV 2006-404-3546 2 March 2007. Several grounds of appeal survived, but the appeal itself has not yet been heard. That is because the Friends have wanted to challenge Winkelmann J's strike-out decision and have the struck-out grounds reinstated before the appeal proper is heard. [4] The Friends were uncertain how to challenge Winkelmann J's decision. They considered they had a right of appeal from that decision to this court under s 66 of the Judicature Act 1908. They accordingly filed an appeal under CA116/07. [5] In case they were wrong about that, however, they also adopted a fall-back position of seeking leave to appeal to this court under s 308 of the Resource Management Act. Section 308 incorporates by reference s 144 of the Summary Proceedings Act 1957. That section permits appeals to this court by leave of the High Court or, if that court refuses leave, by special leave of this court. The application for leave to appeal came before Andrews J. She held, in a reserved decision delivered on 3 December 2007, that there was no jurisdiction to grant leave under s 308 because, in her view, Winkelmann J's decision was not "a decision of the High Court under section 299". [6] The Friends have not contested Andrews J's view that there was no jurisdiction to grant leave under s 308. That is because their argument is a strike-out decision does not come within s 299 of the Resource Management Act, and is thus not caught by s 308. That must mean, therefore, they argue, there is a right of appeal under s 66 of the Judicature Act. The Friends did appeal, however, Andrews J's costs order in favour of the dredgers. That appeal was filed under CA27/2008.Issues on the appeal[7] After the parties had filed their submissions on the two appeals, it became clear to us that all we could do in the time allocated for hearing these appeals was sort out the procedural muddle which had arisen. Prior to the hearing, we issued a minute setting out the seven procedural questions we thought arose and inviting further submissions directed specifically to them. We indicated to counsel that they were free to reframe the issues if they considered we had framed them incorrectly. Neither side so argued. [8] The oral hearing concentrated on the seven issues we raised. So too will these reasons for judgment, although we shall deal with them under the following five heads. [9] The first issue is whether a respondent to an appeal to the High Court under s 299 of the Resource Management Act can apply to strike out that appeal in advance of the appeal being heard. In short, did Winkelmann J have jurisdiction to consider the dredgers' application? [10] If the answer to that first issue is "yes", then the next issue is whether there a is a right of appeal to the Court of Appeal under s 66 of the Judicature Act from Winkelmann J's decision. [11] The third issue is whether Andrews J was right in holding that the High Court did not have jurisdiction under s 308 of the Resource Management Act to consider an application for leave to appeal to this court. [12] The fourth issue is whether Andrews J's costs order is appealable. [13] The fifth issue is whether that costs order, if appealable, was right.Can a respondent to an appeal to the High Court under s 299 of the Resource Management Act apply to strike out that appeal in advance of the appeal being heard?[14] Mr MacRae, for the dredgers, submitted the High Court did have inherent jurisdiction to strike out appeals from lower courts: Natural Gas Corporation of New Zealand Ltd v Commerce Commission (1995) 8 PRNZ 507. He submitted the jurisdiction should be exercised sparingly and only in clear cases. [15] Mr Davidson QC, for the Friends, accepted that, "in general", the High Court does have inherent jurisdiction to strike out, but he submitted it "should not be available for an appeal against errors of law from the Environment Court". [16] We agree there is inherent jurisdiction to strike out appeals. We do not consider appeals from the Environment Court to be in a special category. The jurisdiction is one "to be very sparingly exercised, and only in very exceptional cases": Lawrance v Norreys (1890) 15 App Cas 210 at 219 (HL). Cases in which the jurisdiction might be exercised include those involving a plain abuse of process of the court, a situation in which it can be clearly seen that the appeal has become moot, or an exceptional case in which it is not even arguable that jurisdiction to hear the appeal exists. While those are not intended to be an exhaustive summary of circumstances in which the inherent jurisdiction might be used, they do give a flavour of the exceptional nature of the grounds on which the application must be based. [17] If an application to strike out an appeal is made to the High Court, either the High Court judge responsible for allocating hearings for civil appeals or the judge assigned to deal with such an application should carefully consider whether the circumstances justify a strike-out application. If there is any doubt as to the summary nature of the issue to be argued, the strike-out application should be set down to be heard contemporaneously with the appeal. That procedure should act as a disincentive against making unfounded or inappropriate strike-out applications.Is there a right of appeal to the Court of Appeal under s 66 of the Judicature Act from Winkelmann J's decision?[18] Mr Davidson submitted that Winkelmann J's decision, being a decision on a strike-out application, was appealable under s 66 of the Judicature Act. Mr MacRae disputed this. [19] Neither the drafters of the Resource Management Act nor the drafters of Part 10 of the High Court Rules appear to have considered the possibility of an application in the High Court to strike out an appeal from a lower court. Both documents are completely silent on the topic. It may be the drafters did not appreciate the possibility of such applications. Another explanation is that, while they appreciated the possibility of strike-out applications, they considered them such rare beasts that the courts could plug any legislative gaps. [20] Whichever is the correct explanation, we have no doubt as to the status of Winkelmann J's decision. It should be treated as "a decision of the High Court under section 299", with the consequence that it is amenable to appeal, but only if leave is granted under s 308. It is not appealable as of right under s 66 of the Judicature Act. [21] This is the only sensible conclusion. Suppose the dredgers' strike-out application had been allocated the same hearing date as the appeal itself (as indeed we recommend above). The judge who heard the application and the appeal would have delivered one judgment. Undisputedly that judgment would have been "a decision of the High Court under section 299" regardless of whether the judge: (a) struck out all the grounds of appeal; or (b) struck out some of the grounds of appeal and dismissed the balance; or (c) refused to make a decision on the strike-out application, but dismissed the appeal on the basis that the questions were not questions of law; or(d) refused to make a decision on the strike-out application, but dismissed the appeal on the merits, while indicating that some or all of the questions were probably/possibly not questions of law at all. [22] In each of those cases, the High Court judge's decision would be appealable under s 308, provided either the High Court or this court could be persuaded the decision gave rise to a question or questions of law which, by reason of their general or public importance or for any other reason, ought to be submitted to this court for decision. A High Court decision that a particular question was not a question of law would itself be potentially appealable: was the High Court's decision that a particular question was not a question of law correct as a matter of law? [23] Once that is conceded, it should make no difference at all to appeal rights if the strike-out application is determined separately from the appeal itself. Neither party to an appeal should get a forensic advantage or suffer a forensic disadvantage from the procedural route followed. The parties' positions vis-à-vis the possibility of appeal should be identical whether the strike-out application is heard at the same time as the appeal or at different times and whether the respondent takes a point that a proposed question is not a question of law by strike-out procedure or simply by way of defence to the appeal itself. [24] The case most directly on point is Amcor Trading (NZ) Ltd v HarrisonCA138/98 13 August 1998. In that case, Anthony and Anne Harrison were unsuccessful in the District Court. They appealed to the High Court. The successful parties in the District Court, Amcor Trading (NZ) Limited and others, applied to strike out their appeal, but Cartwright J dismissed that application. Amcor then attempted to appeal against Cartwright J's decision, purportedly under s 66 of the Judicature Act. This court held there was no jurisdiction under s 66 and, for that reason, the appeal was dismissed. What is particularly significant about the decision, however, is what this court said would have been the position had the strike-out application succeeded. Had that occurred, the court held, there would have been "a determination of the High Court on an appeal from an inferior Court", which could then have been the subject of a leave application under s 67 of the Judicature Act: at 3. Section 67 of the Judicature Act, which permits second appeals by leave in thecase of civil proceedings which began life in the District Court, is a direct equivalent of s 308 of the Resource Management Act, which permits second appeals by leave in respect of proceedings which began life in the Environment Court. [25] The view we take differs from the stance adopted by both counsel. Mr Davidson submitted there was a right of appeal under s 66 of the Judicature Act unless the entire appeal was struck out, in which case s 308 of the Resource Management Act would apply. But there is, with respect, no logic in that approach. Why should some (purported) questions of law be able to come to the Court of Appeal as of right, whereas the same questions could come only by leave if, by chance, handled in a different procedural way in the High Court, as shown by [21] above? Why should an appellant be able to come to the Court of Appeal as of right if some questions of law are struck out, but not if all of them are? This argument, with respect, produces absurd results and cannot have been the legislative intention. [26] The essential feature of Mr Davidson's argument was his classification of Winkelmann J's decision as an interlocutory decision. Having so classified it, he then went on to argue that s 66 permitted appeals from interlocutory decisions of the High Court. That is to focus on form over substance. Winkelmann J's decision was not an interlocutory decision in the normal sense; it was in truth the substantive answer to a large part of the Friends' appeal. It is beside the point that there will be in due course a further answer to the rest of the appeal. Each partial answer will be a decision under s 299 and thus appealable by leave under s 308. [27] Even if, contrary to our view, Winkelmann J's decision could be termed "interlocutory", that is beside the point. What we have to determine is the meaning of the expression "a decision of the High Court under section 299 of this Act" in s 308 in circumstances where Parliament has not expressly dealt with substantive outcomes utilising a strike-out procedure. It seems clear to us that, had Parliament turned its mind to this question, it would have said, "Of course, that decision comes within the term we have used. Any other result would be ridiculous. Either there would have to be an appeal as of right, whereas in all other cases appeals are only by leave. Or, worse still, there would end up being no right of appeal at all."[28] Because the focus is on the meaning of the expression "a decision of the High Court under section 299" in the context of ss 299 - 308 of the Resource Management Act, we have not found helpful decisions trying to define "interlocutory decision" or "interlocutory order" in quite different statutory contexts. But we will discuss briefly the two leading cases which Mr Davidson submitted supported his essential proposition set out at [26] above. These were Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA) and Smiturnugh Limited v Auckland City Council HC AK AP39SW/00 5 September 2000. [29] Dispensing Opticians was not a resource management case. Notwithstanding that, it is of some (though limited) use in the current context. For a start, the court made the general observation that appeal rights depend on context. The court did no more than set out a possible "general approach", but acknowledged that "the boundary lines [would] not be cut and dried": at [36]. In determining which side of the line a decision stood, the court needs to take into consideration "the scheme and object of the relevant provisions and underlying policy and sound practice": at [36]. In our view, consideration of such matters here points clearly to a decision to strike out an appeal or part of an appeal which has been brought under s 299 being treated as "a decision under section 299" for the purposes of s 308. [30] That view accords with another comment made by this court in Dispensing Opticians when considering ss 66 and 67 of the Judicature Act. At [9], this court noted as an "important feature" the anomaly created by any interpretation which permitted an appeal as of right from an interlocutory decision in a proceeding where the final determination could be appealed only with leave. We agree with that observation, while noting it is not directly applicable to the present case. Winkelmann J's decision, as a substantive answer, is within ss 299 and 308, with the consequence that an appeal lies with leave. Our view is, therefore, consistent with the rationale of Dispensing Opticians, even though that case does not provide the specific answer to the problem with which we are faced. [31] The second decision, Smiturnugh, is, however, directly on point. Smiturnugh sought to appeal from a decision of the Environment Court. Before that appeal could be determined, B W and A N Dunn, the second respondents, applied to strike out allor parts of the notice of appeal on the basis that the grounds of appeal were not questions of law. Fisher J heard that application and did strike out several points on appeal on the basis that they were not questions of law. Smiturnugh then sought leave under s 308 to appeal Fisher J's decision. Paterson J heard that application. He held he had no jurisdiction to grant leave because Fisher J's decision was not "a decision of the High Court under section 299": at [9]. [32] Was there therefore no possibility of appeal against Fisher J's decision? Paterson J said the question of whether Smiturnugh could appeal under s 66 of the Judicature Act was not before him for determination: at [10]. Notwithstanding that, he expressed a tentative view that Smiturnugh might have a right of appeal under s 66. He noted that this court had held in New Zealand Paper Mills Limited v Otago Acclimatisation Society [1992] 1 NZLR 400 that, "because of the specific restrictions contained in s 308, it is not possible for an applicant to avail him or herself of the more general provisions in s 66 of the Judicature Act and appeal an interlocutory order", but observed these were "obiter comments" and might well be distinguishable: at [10]. [33] With respect, we consider Smiturnugh wrongly decided and overrule it. It seems Paterson J was not referred to Amcor, with which it is inconsistent. Mr Davidson attempted a "reconciliation" of Amcor with Smiturnugh, but we found it unconvincing. We also consider Smiturnugh inconsistent with the rationale ofDispensing Opticians and New Zealand Paper Mills, even though we acknowledge neither of those decisions is directly on point. We consider, with respect, that Paterson J's approach would give rise to the undesirable consequences we have referred to earlier in this section of these reasons for judgment. [34] Mr MacRae submitted there was neither a right of appeal under s 66 of the Judicature Act nor a right of appeal under s 308 of the Resource Management Act. A strike-out decision was simply unappealable. We find that a most unattractive proposition. It would encourage respondents to apply to strike out questions of law as a pre-emptive move because of the forensic advantage they would reap, if successful, compared with what the position would be if they waited until thehearing of the appeal proper: see [21] - [22] above. We want to discourage, not encourage, strike-out applications in the appeal context. [35] Mr MacRae's submission proceeded on the same erroneous basis that Mr Davidson's argument did. Adopting an approach of form over substance, he categorised Winkelmann J's decision as interlocutory and refused to acknowledge the fact that it substantively answered a large part of the Friends' appeal. He submitted that, as an interlocutory decision, it could not be a decision under s 299 of the Resource Management Act, and therefore was not appealable under s 308. He then argued that, as an interlocutory decision, it was not appealable under s 66. [36] While we agree with Mr MacRae that Winkelmann J's decision is not appealable under s 66 of the Judicature Act, we do not accept his reasoning. In our respectful view, the correct analysis is that we have set out above. [37] It follows that the Friends' purported appeal against Winkelmann J's decision under s 66 of the Judicature Act must be dismissed, neither leave nor special leave to appeal having yet been obtained. That does not mean, however, that the Friends are shut out from the courts, as has already been foreshadowed and as we shall develop further in the next section of these reasons.Was Andrews J right in holding that the High Court did not have jurisdiction under s 308 of the Resource Management Act to consider an application for leave to appeal to this court from Winkelmann J's decision?[38] It follows from the above analysis that Andrews J was wrong to hold that she lacked jurisdiction to consider an application for leave to appeal from Winkelmann J's decision. [39] Andrews J's decision was, however, entirely understandable given the argument presented to her. First, Andrews J recorded that "it was common ground between the parties that the Friends cannot seek leave to appeal under s 308 of the Resource Management Act": at [17]. We can quite understand why the dredgers adopted that stance, but are puzzled as to why the Friends did.[40] The judge also noted Smiturnugh. Although, of course, she was not technically bound by it, it is no surprise that she chose to follow it in circumstances where the applicant submitted it was correct and accepted that it meant the application could not be granted under s 308. Andrews J did not have the luxury of overruling Smiturnugh, as we have done. [41] The argument before Andrews J centred on two other statutory provisions under which the Friends argued leave to appeal could be granted. One provision was s 144 of the Summary Proceedings Act, which was submitted to be available "independently of s 308 of the Resource Management Act": at [25]. The other was s 67 of the Judicature Act: at [35]. Andrews J rejected both arguments. Neither has been revived in the present proceeding. We have no doubt her Honour was correct in that part of the judgment. [42] Andrews J accordingly held she had no jurisdiction to consider the application for leave, which was accordingly dismissed. [43] For the reasons previously given, we consider she did have jurisdiction to consider the application under s 308. That opportunity has now been lost to the Friends. There is no appeal against that part of Andrews J's decision. We cannot therefore direct that the application be reconsidered on its merits. All the Friends can now do is apply for special leave from this court. They are out of time, but s 144(3) of the Summary Proceedings Act (as incorporated into s 308) makes provision for the Court of Appeal to extend time. Whether the Friends want to make a late application is a matter for them. We make no comment as to its chances of success, although the Friends' not unreasonable reliance on Smiturnugh would be a strong factor in support of excusing the lateness of application. The dismissal of appeal CA116/07 would not prevent special leave being granted. [44] We do make one observation as to timing. Mr Davidson is adamant that the correctness of Winkelmann J's decision must be determined prior to the hearing of the balance of the Friends' appeal. For our part, we do not see why that is necessary. After all, the Friends may win their appeal without the grounds which have been struck out. That would render unnecessary any appeal from Winkelmann J'sdecision. If the Friends lose the appeal, then it may well be more efficient if the two appeals (the appeal from Winkelmann J and the appeal from the judge who hears the balance of the appeal) come to this court together, assuming leave to be granted. Having made those observations, however, we stress that the timing of the hearing for the balance of the Friends' appeal is entirely a matter for the High Court.Is Andrews J's costs order appealable?[45] Andrews J ruled that the dredgers were "entitled to costs on a 2B basis, together with disbursements as fixed by the Registrar": at [43]. The Friends have appealed against that order. [46] The dredgers oppose the appeal. Indeed, they go further and have applied to strike it out. [47] Mr MacRae submitted the costs order was not appealable on two grounds. First, there is no jurisdiction to appeal a costs order on an interlocutory decision. Secondly, in any event, this costs order cannot be appealed because it has not been finalised. We shall deal with those arguments in turn. [48] We agree that a decision granting or refusing leave to appeal is not appealable. The only recourse for an applicant declined leave is to apply afresh to the Court of Appeal for special leave. But a costs order is different. Costs orders may be challenged and reversed on appeal in two different ways. First, they can be challenged directly and independently of the substantive decision to which they relate via an appeal under s 66 of the Judicature Act. Alternatively, and more commonly, a High Court costs order may be reviewed if the substantive decision to which it relates is overturned or varied. In this latter situation, the Court of Appeal derives its jurisdiction from r 48(4) of the Court of Appeal (Civil) Rules 2005: see the discussion in McGechan on Procedure (looseleaf ed) at [CR53.02] and [CR53.04]. We are not concerned with this latter situation in the present case as there has been no appeal from Andrews J's substantive decision.[49] We therefore concentrate on the first challenge route, namely under s 66. A stand-alone costs appeal will be based on the proposition that costs have been wrongly determined under the High Court Rules costs regime. Although potentially every costs order made in the High Court is appealable, where that costs order has been made as part of an interlocutory decision, an appeal against it may sometimes be deferred pending the substantive outcome of the case. We do not need to determine here when such deferral is required or permissible. The reason for such deferral is practical: it is usually better to have one substantive appeal embracing every complaint than a string of appeals. Andrews J's costs order is, however, the "final word" so far as this proceeding's life in the High Court is concerned. (We realise the balance of the appeal is yet to be heard. But the judge hearing that will have no jurisdiction to review Andrews J's costs order.) So, if the costs order is to be challenged, now is the time. [50] Mr MacRae cited no authority for his proposition that a costs order cannot be appealed under s 66. It is irrelevant that it is "an interlocutory ruling made in the context and as part of a resource management appeal proceeding". After all, the "resource management appeal proceeding" may never come to the Court of Appeal, as the questions of law raised in it may not warrant this court's consideration. This would mean the costs order could never be challenged. The costs order is not directly challengeable under s 308 of the Resource Management Act. (This is not to say it could not be reviewed under r 48(4) if a s 308 substantive appeal is in due course brought and is successful.) Whether the costs order is right or not has nothing to do with the Resource Management Act; the costs order, like every High Court costs order, involves the exercise of discretions under the costs regime in the High Court Rules. [51] On Mr MacRae's argument, an outrageous costs order on a leave application would not be appealable at all, at least in circumstances where leave to appeal was declined. That is not the law. Section 66 permits an immediate appeal as of right from a costs order on an unsuccessful leave application. [52] Mr MacRae's second jurisdictional argument relied on Parris v Television New Zealand Limited (1999) 14 PRNZ 172. In that case, the High Court had orderedMr Parris to pay 80% of Television New Zealand Limited's reasonable solicitor and client costs. If there was a dispute about the reasonableness of those costs, the judge ordered memorandums to be filed, with supporting documentation. Before the costs were quantified, Mr Parris appealed. Television New Zealand opposed the appeal on the basis that the appeal was premature. The costs had not been fixed; all the High Court had done was advise "the formula which it proposes to adopt in fixing costs": at [12]. It was possible, this court said, that the High Court judge might yet "revisit the 80% assessment if that seemed desirable". It was only when the costs were actually fixed that "there [would] be an order against which an appeal will lie": at [12]. [53] Mr MacRae submitted that Parris was directly applicable. Mr Carnie, who argued this aspect of the case for the Friends, disputed that. He submitted that the costs in this case were fixed by use of the "2B" formula, even though the arithmetic had yet to be done. [54] We accept Mr Carnie's submission. We distinguish Parris. In that case, the costs order remained quite incomplete. Here, the judge had fixed what costs were to be for each step on the leave application. Anyone could with certainty draw up the costs order, without reference to the judge at all. Similarly, while the task of fixing disbursements has been delegated to the registrar, there is only one answer the registrar could come to with respect to them in this case. [55] For these reasons, we accept the Friends' submissions that Andrews J's costs order is appealable. [56] It follows that the dredgers' application to strike out CA27/2008 on jurisdictional grounds must be dismissed. This application was completely unnecessary. There was no reason why the jurisdictional arguments could not simply have been taken by way of defence to the Friends' appeal.Was the costs order right?[57] We have held that Andrews J was wrong to dismiss the Friends' leave application for lack of jurisdiction. But her error in that regard does not mean her costs order should be revisited. Mr MacRae submitted that the way in which the Friends had argued its case before Andrews J was "relevant to the question of costs". He noted that the Friends had argued that the High Court had no jurisdiction to grant leave under s 308, but instead had relied on "an independent right of appeal under s 144 of the Summary Proceedings Act and s 67 of the Judicature Act". He submitted it was now accepted by everyone that the last two provisions were not relevant. Accordingly, Mr MacRae submitted, the judge had been correct to refuse leave on the argument presented to her. [58] We think there is substance in that submission. Mr Davidson countered by saying that Andrews J had "upheld the [Friends'] submissions on the central issue". He submitted that her Honour had found "the High Court did not have jurisdiction to grant or decline the [Friends'] leave", as the Friends had submitted. But that is not right. It is true the judge held Winkelmann J's decision was not a decision under s 299 and thus not within s 308. In so holding, she erred, but the error was entirely understandable given both sides had wrongly submitted that to be the case. The basis upon which the Friends advanced the leave application before Andrews J was unsuccessful and rightly so. It is quite wrong for Mr Davidson to submit that the dredgers' submission was "wholly unsuccessful". On the contrary, it was "wholly successful". [59] What happened before Andrews J was just part of the procedural muddle into which this case has got. We are satisfied her decision on costs was appropriate, given the way in which the case was argued before her. We decline to interfere with her costs order, which means that the appeal under CA27/2008 must be dismissed.Costs on these appeals[60] We have determined that the dredgers should have costs on CA116/07, where they have been successful in arguing the Friends could not bring an appeal as of right against Winkelmann J's decision. [61] On the other appeal, we have decided there should be no order for costs. Both sides have had a measure of success. While this appeal too has been dismissed, the dredgers failed in their submission that the Friends had no right of appeal against Andrews J's costs order. The dredgers were also responsible for a completely unnecessary application to strike out this appeal. As well, the dredgers must accept some of the responsibility for Andrews J having been led into error. [62] In addition, we would observe that CA27/2008 required little additional preparation and took up only a small part of the overall hearing time.Solicitors: Clendons, Auckland, for The Friends of Pakiri BeachD L A Phillips Fox, Auckland, for McCallum Bros Limited and Sea-Tow Limited