MacPherson v Napier City Council

[2014] NZHC 305

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2012-441-000851 [2014] NZHC 305

UNDER  the Judicature Amendment Act 1972 ("the Act")

IN THE MATTER OF       the Resource Management Act 1991 ("the RMA")

BETWEEN  J E MACPHERSON and N J MATHESON Applicants

ANDNAPIER CITY COUNCIL First Respondent

ANDWHATEVER IT TAKES TRUST INCORPORATED

Second Respondent

Hearing:                   27 February 2014 [On the Papers]

Counsel:                  M J E Williams for the Plaintiffs

M B Lawson for the First Respondent
M J Wenley for the Second Respondent

Judgment:                27 February 2014

JUDGMENT OF DUFFY J [Re Costs]

This judgment was delivered by Justice Duffy on 27 February 2014 at 11.00 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

MACPHERSON v NAPIER CITY COUNCIL [2014] NZHC 305 [27 February 2014]

[1]      The successful applicants in this judicial review seek costs.  They calculate costs according to the schedule in the sum of $26,566.50, along with disbursements in the sum of $2,404.80.  No one has challenged the quantification of the costs.  The difficulties  the  parties  have  experienced,  which  have  caused  them  to  require  a decision from this Court, relate to the apportionment of costs as between the two unsuccessful respondents.

[2]     Under r 14.14 of the High Court Rules, costs as between unsuccessful respondents are borne joint and severally.

[3]      The applicants have suggested that the costs be split 50 per cent against each respondent severally, namely $14,485.65 per party.

[4]      The second respondent, which is a charitable trust, contends that the error which led to the first respondent’s decision being set aside is entirely the responsibility of the first respondent, so the first respondent should be ordered to pay the plaintiffs’ costs.

[5]      The first respondent accepts that it made processing errors, but asserts that the underlying defects in the second respondent’s resource consent application were of the second respondent’s making.  It submits that had those matters been properly addressed in the application when first lodged, none of the ensuing processing difficulties would have arisen.

[6]      The first respondent also contends that it attempted to reach a compromise settlement with the parties on the question of the consent.  The second respondent in reply contends that the offers of compromise suggested by the first respondent were unduly restrictive.

[7]      At [107] of the judgment, I accepted the second respondent’s submission that it would suffer the consequences of the first respondent’s errors.  That is not to say, however, that there were no errors for which the second respondent is responsible. When it comes to apportioning responsibility for the defects that led to the consent being set aside, I accept there is some force in the first respondent’s argument that

had the application been properly prepared in the first place, the errors of the first respondent that caused the application ultimately to be set aside would not have occurred.

[8]      I consider the applicants’ suggestion that costs be apportioned 50 per cent between the two respondents severally to be the fair and reasonable approach to costs here and so order accordingly. The same goes for the disbursements.

Result

[9]      Costs are awarded to the applicants in the sum of $13,283.25 against each respondent severally.

[10]     Disbursements of $2,404.80 are awarded to the applicants.  Payment of the disbursements is to be shared equally and severally as between the respondents.

Duffy J

Counsel:      M J E Williams, Napier

Solicitors:    Carlile Dowling (A J Pidd), Napier Lawson Robinson Limited, Napier Willis Toomey Robinson, Napier