Dokad Trustees Limited v Auckland Council

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA708/2021
[2022] NZCA 376

BETWEEN	DOKAD TRUSTEES LIMITED Appellant
AND	AUCKLAND COUNCIL First Respondent ENVIRONMENT COURT Second Respondent

Counsel:	No appearance for Appellant R J O’Connor for First Respondent No appearance for Second Respondent
Judgment: (On the papers)	12 August 2022 at 3.00 pm

JUDGMENT OF GODDARD J

The appellant must pay costs of $717 to the first respondent.

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REASONS

This appeal was deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 (Rules) on 1 July 2022.
The first respondent (the Council) seeks costs in respect of four memoranda filed on its behalf in relation to security for costs and various matters dealt with in my judgment of 11 May 2022.[1] The Council seeks costs for a standard application on a band A basis for each of the four memoranda. The default provision in the Rules for a reasonable time for a memorandum in opposition is 0.2 days. The prescribed daily rate is $2,390 per day. So the Council seeks four awards of $478 per memorandum, which would result in a total costs award of $1,912.
[1]Dokad Trustees Ltd v Auckland Council [2022] NZCA 177.
The Council’s memoranda advanced a number of points at some length, with varying degrees of success. The Council advanced unsuccessful arguments in relation to whether leave was required to bring the appeal, and compliance with r 30 of the Rules. The Council made successful arguments in relation to security for costs and representation of the appellant. Plainly the Council should not be awarded costs in respect of the unsuccessful points advanced by it. The points that were successful could have been made very briefly in memoranda that took much less time to prepare than the 0.2 day default allowance for filing memoranda in opposition provided for in the Rules.
The Council has been put to some cost by this appeal, which has been deemed abandoned. A modest award of costs is appropriate. But I am not persuaded that an award of costs at the level sought can be justified having regard to the mixed outcome that resulted from the Council’s memoranda, and the relative simplicity of the points that were successfully advanced. The just outcome overall is an award of costs for 0.3 days, giving a total award of $717.
The appellant must pay costs of $717 to the Council.

Solicitors:
Auckland Council, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent

CaseChat Overview and Summary

Dokad Trustees Limited, an appellant, filed an appeal against the Auckland Council, the first respondent, and the Environment Court, the second respondent. The appeal was deemed abandoned on 1 July 2022. The first respondent sought costs for four memoranda filed in relation to security for costs and other matters. The Council sought an award of costs for each memorandum based on the prescribed daily rate of $2,390 per day, amounting to a total of $1,912.

The legal issues involved in this case centred on the calculation of costs for the memoranda filed by the first respondent. The court had to determine whether the costs sought were justified, considering the outcome of the memoranda and the time taken to prepare them. The court also had to decide whether the unsuccessful arguments advanced by the Council should attract costs.

In its judgment, the court found that the Council should not be awarded costs for the unsuccessful points it advanced. However, a modest award of costs was appropriate for the points that were successful. The court noted that the successful points could have been made briefly, and the memoranda took longer to prepare than the default allowance of 0.2 days. The court decided on an award of costs for 0.3 days, amounting to $717, which was less than the amount sought by the Council.

The court ordered that the appellant, Dokad Trustees Limited, must pay the costs of $717 to the first respondent, Auckland Council. The second respondent, the Environment Court, did not seek costs. The court's decision balanced the costs incurred by the Council due to the abandoned appeal with the mixed outcome of the memoranda and the relative simplicity of the successful points.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established