THE PROPRIETORS OF POTIKIRUA BLOCK INCORPORATION v TE KANI [2021] NZHC 81

THE PROPRIETORS OF POTIKIRUA BLOCK INCORPORATION v TE KANI [2021] NZHC 81 [3 February2021]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECIV 2013-416-153[2021] NZHC 81BETWEEN THE PROPRIETORS OF POTIKIRUABLOCK INCORPORATIONPlaintiffAND RENATA TE KANI as administrator of theestate of WAMOANA TE KANIDefendantOn the papersJudgment: 3 February 2021JUDGMENT OF MALLON J(Costs)[1] I refer to my judgments dated 5 December 2019, 1 April 2020 and22 December 2020.1 The defendant seeks costs. The plaintiff accepts the defendantis entitled to costs as the successful party at trial. The issue is what are the appropriatecost category and band and whether any uplift is appropriate.[2] The defendant seeks costs on a category 3C basis. The plaintiff submitscategory 2B is appropriate.[3] I agree with the plaintiff that category 2 is the appropriate one. Category 2 wasagreed by the parties when they filed a joint memorandum during the casemanagement phase of the proceeding. That category applies to proceedings of averagecomplexity requiring counsel of skill and experience considered average in the High1 The Proprietors of Potikirua Block Incorporation v Te Kani [2019] NZHC 3200; The Proprietorsof Potikirua Block Incorporation v Te Kani [2020] NZHC 668; and The Proprietors of PotikiruaBlock Incorporation v Te Kani [2020] NZHC 3525.Court. The fact that the proceeding related to events many years ago did not make itmore complex – it simply meant that relevant documents had to be found, somedocuments were no longer available and the recollections of surviving witnesses haddimmed. The legal issues involved were relatively difficult, particularly because therelevant legislation had "suffered from the ebb and flow of legislative attention andpolicy changes" with major amendments "locked forever in the amendinglegislation".2 However, the defendant largely left it to the plaintiff's counsel,Mr Koning, to assist the Court with navigating through that legislation as he hadparticular experience with that legislation. Intending no disrespect toMr Weatherhead, who represented his client well, his side of the argument did notrequire counsel with special skill and experience in the High Court.[4] I also agree with the plaintiff that Band B represents the reasonable time foreach step in the proceeding. As noted, the main complication was the difficultlegislation. The bundle of documents, the number of witnesses and the scope of theirevidence were all relatively confined. The submissions were also concise.[5] The only step that took longer than it should have related to the remedy to begranted. That was capable of being dealt with by consent (in accordance with theapproach I had indicated in my 5 December 2019 judgment), with referral back to theCourt to endorse and potentially declare what had been agreed. It was clear that theIncorporation was not entitled to register all of Renata's shares in its name. The onlyquestion was the mechanism by which the Incorporation could correct the position. Iconsider, however, that this is addressed because the defendant will be entitled to claimon a 2B basis for the additional sets of submissions that were necessary after the5 December 2019 judgment.[6] The defendant submits that an uplift of 50 per cent is appropriate because theplaintiff ignored the defendant's invitation to negotiate on the appropriate shareallocation. The defendant says the plaintiff's assets enabled it to pursue its claimwithout pausing to consider the likely outcome. Further, on 17 February 2020 (beforethe next two rounds of submissions and judgments became necessary) the defendant2 See [2019] NZHC 3200, above n 1, at [117] (quoting from the Māori Affairs Bill (124-1)(explanatory note) and [118].made a "without prejudice save as to costs" offer that accords with what I ultimatelydeclared in my 22 December 2020 judgment.[7] In my view the defendant's earlier attempts to negotiate a solution do notwarrant an uplift. As the plaintiff submits, the core claim it brought was for return ofthe land to communal ownership and there was a cultural interest for the Incorporationto pursue legal avenues to have the land returned. Further, its position was vindicatedto some extent in that the Court found that the transfer had not complied with theMāori land legislation in several respects and the consideration for the transfer hadnever been paid.[8] As to the 17 February 2020 offer, while it would have been better if the plaintiffhad indicated its agreement with it, subject to investigating the appropriate legalmechanism to regularise matters, ultimately I consider this does not warrant an uplift.This is because I accept that finding the appropriate mechanism was notstraightforward due to the complex legislative regime. Eventually, the plaintiffidentified a mechanism which enabled it to correct the register. Further, theallowances for the additional submissions that followed my 5 December 2019judgment recognise the costs to the defendant after that judgment by the approach theplaintiff took.[9] I make a costs order on a 2B basis in favour of the defendant accordingly.Mallon J