Friends of Houghton Valley Incorporated v Wellington City Council

[2016] NZHC 880

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-270 [2016] NZHC 880

IN THE MATTER

of an application for review

IN THE MATTER

of subdivision and land use consents by the First Defendant under the Resource Management Act 1991

UNDER

the Judicature Amendment Act 1972

BETWEEN

FRIENDS OF HOUGHTON VALLEY INCORPORATED

Plaintiff

AND

WELLINGTON CITY COUNCIL First Defendant

AND

KAIKOURA VIEW LIMITED Second Defendant

Hearing:	On Papers
Counsel:	G D S Taylor for Plaintiff H B Rennie QC and P D Tancock for Second Defendant
Judgment:	4 May 2016

COSTS JUDGMENT OF BROWN J

[1]      The  contest  over  costs  consequent  upon  my  judgment  dismissing  the plaintiff’s application for review1 is between the second defendant and the plaintiff, the first defendant having advised that it will not be seeking costs.

[2]      In my judgment I noted that the defendants were prima facie entitled to costs and I recorded my preliminary view that costs should be awarded on a schedule 2B

basis subject to costs memoranda. The following memoranda have been filed:

1      Friends of Houghton Valley Inc v Wellington City Council & Or [2015] NZHC 234.

FRIENDS OF HOUGHTON VALLEY INC v WELLINGTON CITY COUNCIL [2016] NZHC 880 [4 May 2016]

(a)       memorandum of second defendant dated 14 March 2016; (b)  memorandum of plaintiff dated 4 April 2016;

(c)       memorandum of second defendant in reply dated 7 April 2016.

[3]      The parties are in agreement as to the calculation of costs on a schedule 2B

basis in the sum of $31,889.00.

[4]      The second defendant, which has incurred total costs of $49,643.76 (GST inclusive), seeks an uplift of an additional 25 to 35 per cent on schedule 2B costs in reliance on the following matters:

(a)       the claim failed in its entirety;

(b)      the plaintiff was on notice that its grounds were unlikely to succeed;

(c)      of the grounds for seeking review, two were withdrawn at an early stage and a third was abandoned at the hearing;

(d)only two grounds were ultimately pursued but the second defendant was put to the cost of preparing for the additional grounds which were abandoned  by  the  plaintiff  and  the  second  defendant  should  be entitled to additional costs on these grounds;

(e)      in addition, the second defendant took considerable steps to settle the dispute including offering to see if changes could be made to the development to avoid the review proceedings;

(f)       a Calderbank letter was  sent by the second defendant’s solicitors,

however, this was also refused.

[5]      The “Calderbank letter” referred to was a letter of the second defendant’s solicitors dated 9 June 2015 which proposed the offer of a cash payment to a local environmental group together with an agreement not to pursue costs against the

plaintiff in exchange for the plaintiff withdrawing the proceedings by no later than

26 June 2015.

[6]      The plaintiff resists any uplift.  Indeed it submits that costs should be reduced by a total of 93 per cent, that figure comprising:

(a)       failed issues: 33 per cent;

(b)      public interest plaintiff: 40 per cent; (c)           improper pleadings: 20 per cent.

As the second defendant notes, a reduction of that order would result in an award of costs of no more than $2,239.00.

[7]      I consider that there is some justification for an uplift in view of the second

defendant’s attempt to resolve the litigation in June 2015.

[8]      I do not accept that there is any basis for reducing costs below a schedule 2B

calculation on account of:

(a)       the suggested public interest character of the plaintiff;

(b)      the allegation of Mr Denee having made a false statement; (c)           the allegation that the plaintiff was a sham.

[9]      However I consider that there is some merit to the plaintiff’s submission that it did not fail on all issues in that it succeeded both on the standing issue raised by the  second  defendant  alone  and  on  the  contention,  primarily  advanced  by  the Council, that the plaintiff could not bring a proceeding which did not challenge the notification decision.   However I do not accept the plaintiff’s argument that its success on those two preliminary matters warrants a reduction by one third of the costs that might be awarded to the second defendant.

[10]     I consider that it would be appropriate to allow an uplift in favour of the second defendant of 25 per cent but I further consider that there should be a partial offset in favour of the plaintiff of 10 per cent in respect of its success on the initial qualifying issues.  In the result the second defendant is entitled to the schedule 2B costs in the sum of $31,889.00 with a 15 per cent uplift.

[11]     As requested by the second defendant, an order is made that the security of

$10,000 held by the Court be paid by the Registrar to the second defendant in partial satisfaction of that costs award.

Brown J